Central Administrative Tribunal - Hyderabad
S Gulshad Begum vs Bharat Sanchar Nigam Ltd on 18 November, 2021
OA No.72/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA/020/0072/2017
HYDERABAD, this the 18th day of November, 2021
Hon'ble Mr. B.V.Sudhakar, Admn. Member
Smt. S. Gulshad Begum, Widow of S. Khader Basha,
Aged about 59 years, Occ: Group D,
O/o. General Manager, Telecom District,
BSNL, Kadapa, R/o. Kadapa.
...Applicant
(By Advocate: Mr. V. Venkateswara Rao)
Vs.
1. The Chief General Manager Telecom,
AP Circle, BSNL, Hyderabad - 500 001.
2. The General Manager, Telecom,
BSNL, Kadapa - 516001.
3. The Sub Divisional Engineer (Staff III),
O/o. CGMT BSNL, Hyderabad.
4. The General Manager (Admin)
O/o. The General Manager, Telecom District,
BSNL, Kadapa - 516001.
....Respondents
(By Advocate : Mr. M. Brahma Reddy, SC for BSNL)
Page 1 of 7
OA No.72/2017
ORAL ORDER
(As per Hon'ble Mr. B.V.Sudhakar, Admin. Member) Through Video Conferencing:
2. The OA is filed in regard to change of date of birth.
3. Brief facts of the case are that the applicant was appointed as Group 'D' employee on compassionate grounds vide order dated 07.11.2009.
According to the applicant, her date of birth in the SSC certificate was wrongly shown as 13.06.1957 instead of 13.06.1964. The Birth certificate issued by the concerned Tahsildar on 16.04.2015 shows her date of birth as 13.06.1964. Representation submitted to correct the date of birth on the strength of the Tahsildar certificate was rejected on 08.11.2016. Further representations made did not yield the desired result and hence, the OA.
4. The respondents have rejected the request for alteration of date of birth on technical grounds without going into the merits. The respondents have insisted to submit the SSC certificate though she was appointed as Group 'D' under relaxation of rules for which submission of educational certificate was not required. Respondents when approached to correct the date of birth, applicant was informed that it would be done at a later stage. She also applied for the extract of the birth register and that it would be submitted in due course. The date of birth of her husband in SR is shown as 21.05.1961 and that of the applicant as 13.06.1957, implying that she is elder to her husband. In Indian traditional marriages, the bridegroom is older than the bride. Right to retire on the correct date of retirement cannot be taken away by the respondents. The delay of 5 years in appointing her on Page 2 of 7 OA No.72/2017 compassionate grounds predating the date of birth by 7 years has caused a cumulative loss of 12 years with respect to her length of service, that could have been rendered if the respondents were to be fair enough in dealing with her grievances.
5. Respondents have confirmed in the reply statement that the applicant was appointed on compassionate grounds as Group D in 2009 and at the time of appointment, the date of birth recorded in the SSC certificate submitted by her was 13.6.1957. No other records were submitted in respect of date of birth. Later her services were confirmed on 5.11.2011 and at this stage too, there was no request for change of date of birth. Applicant submitted an application for promotion to the post of Telephone Mechanic wherein her date of birth was declared as 13.6.1957. As per BSNL Establishment and Administrative Procedure, every employee shall declare the date of birth on being newly appointed to a service along with documentary evidence as far as possible. There are no clerical errors in recording the date of birth in SR or was it altered in the later years. Requests for change of date of birth have to be made not later than the declaration of the probation period or declaration of quasi permanency, whichever is earlier. The applicant represented on 15.07.2015 which was rejected on 08.11.2016 by the 2nd respondent. Another representation submitted to R-1 was also rejected on 17.10.2016. Applicant is due to retire on 31.06.2017. It is true that the applicant submitted the birth certificate issued by the Tahsildar indicating her date of birth as 13.06.1964, but the date of birth recorded in SSC certificate was reckoned. The date of birth should have been got changed by approaching the education department. Page 3 of 7 OA No.72/2017 Compassionate appointments are offered depending on the availability of vacancies and there is no time limit for appointments on compassionate grounds.
6. Heard both the counsel and perused the pleadings on record.
7. I. The dispute is about the change of date of birth of the applicant from 13.06.1957 to 13.06.1964. Facts reveal that the applicant was appointed on compassionate grounds in the respondents' organization as Group D on 05.11.2009. At the time of appointment, she has submitted the SSC certificate wherein her date of birth was shown as 13.06.1957. The services of the applicant were regularized in 2011 and at that stage too, the applicant has not sought change of date of birth. As per BSNL Rules, the change in date of birth can be made not later than the declaration of the probation period or declaration of quasi permanency, whichever is earlier. The applicant did not apply within the said period. It is well settled in law that rules are to be followed. Respondents have only followed the rules.
II. It is true that the applicant has obtained the birth certificate from the Tahsildhar indicating her date of birth as 13.6.1964 vide letter dated 16.4.2015, but that was too late in the day. The applicant has retired from service on 31.6.2017. She made efforts to get the date of birth changed at the fag end of her service from 2015 onwards. Further, Hon'ble Supreme Court in M/s. Bharat Coking Coal Limited vs Shyam Kishore Singh on 5 February, 2020 in CIVIL APPEAL NO.1009 OF 2020 (Arising out of SLP (Civil) No.20627 of 2019), relying on its previous judgments has observed that even if the employee were to establish the correct date of birth, nonetheless it cannot be entertained when claimed belatedly and that Page 4 of 7 OA No.72/2017 when not preferred within the time period prescribed by the employer as under:
8. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable. The learned Additional Solicitor General has in that regard relied on the decision in the case of State of Maharashtra and Anr. vs. Gorakhnath Sitaram Kamble & Ors. (2010) 14 SCC 423 wherein a series of the earlier decisions of this Court were taken note and was held as hereunder:
"16. The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri [(2005) 11 SCC 465 : 2006 SCC (L&S) 96]. In this case, this Court has considered a number of judgments of this Court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career.
17. In another judgment in State of Uttaranchal v. Pitamber Dutt Semwal [(2005) 11 SCC 477 : 2006 SCC (L&S) 106] relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.
19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. The relevant portion of the judgment in Home Deptt.v. R. Kirubakaran [1994 Supp (1) SCC 155 :
1994 SCC (L&S) 449 : (1994) 26 ATC 828] reads as under: (SCC pp. 158¬ 59, para 7) "7. An application for correction of the date of birth [by a public servant cannot be entertained at the fag end of his service]. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotion forever. ... According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible.
Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. ... the onus is on the applicant to prove the wrong recording of his date of birth, in his service book."
9. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as Page 5 of 7 OA No.72/2017 a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas, (2011) 9 SCC 664 it is held as hereunder;
"8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he 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. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ).
12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book."
In view of the above observations, the relief sought cannot be considered.
III. Other contentions of the applicant that there was delay in granting compassionate appointment does not hold good since such appointments are granted based on the available vacancies, relative merit of the candidates etc. After submitting the SSC certificate, as required by the respondents, the applicant is precluded from taking the stand at this stage that it was not necessary to seek SSC certificate for Group D post when appointed on compassionate grounds. Applicant, having declared that she Page 6 of 7 OA No.72/2017 had passed the SSC exam, there is nothing wrong on part of the respondents to seek the SSC certificate for confirmation of the date of birth.
Besides, service would be reckoned from the date of birth recorded in SR, as per relevant rules, at the time of entry into the service and therefore, loss of 12 years of service, as claimed by the applicant, does not appear to be rational. Applicant proposed to submit the extract of the birth register, but she did not do so as is evident from the records on file. There has been no clerical error in recording the date of birth in the SR by the respondents, which could have been a ground to intervene as per law. Finally, the applicant has herself cited her date of birth as 13.6.1957 when she applied for promotion prior to her retirement as Telephone Mechanic. The same has not been denied by the applicant by way of a rejoinder. This fact is adequate enough to drive the final nail on the coffin and put a quietus to the dispute. The applicant has retired on 31.6.2017.
IV. Therefore, in view of the above circumstances, the OA being devoid of merit, merits dismissal and hence is dismissed with no order as to costs.
(B.V. SUDHAKAR) ADMINISTRATIVE MEMBER evr Page 7 of 7