Central Administrative Tribunal - Allahabad
Virendra Singh Yadav vs General Manager, N E Rly on 17 May, 2019
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH
ALLAHABAD
(ALLAHABAD THIS THE 17TH DAY OF MAY 2019)
PRESENT:
Hon'ble Mr. Rakesh Sagar Jain, Member (J)
Hon'ble Mr. Pradeep Kumar, Member (A)
MA No.330/2799/2018 (Delay Condonation Application)
In
Original Application No.1433 Of 2018
(U/s, 19 Administrative Tribunal Act.1985)
Virendra Singh Yadav age 56 years, son of Sarju Yadav, resident
of Village Mahmoodpur, Post Office Aurihar, Tehsil Saidpur, District
Ghazipur. Presently working on the post of Electricity fitter Grade-I,
Indara Junction, Mau.
. . . . . . . .Applicant
By Advocate: Shri R.S. Yadav
Versus
1. Union of India through its Secretary, Department of Railway,
New Delhi.
2. General Manager, North Eastern Railway, Gorakhpur.
3. General Manager (Karmik) North Eastern Railway, Varanasi.
4. Divisional Rail Manager, North Eastern Railway, Varanasi.
............... Respondents
By Advocate: Shri N.C. Srivastava
ORDER
Delivered by Hon'ble Mr. Rakesh Sagar Jain, Member (J)
1. The applicant Virendra Singh Yadav has filed this OA under section 19 of Administrative Tribunals Act, 1985 seeking a direction to respondents to rectify his date of birth entered as Page No.2 01.06.1959 in his service book since his correct DOB is 01.10.1962 since the respondents despite representations have not rectified his DOB.
2. Brief case of application is that as per the documents in shape of affidavit, Parivar register, Aadhar card and certificate dated 28.11.2011 issued by village Pradhan, his correct date of birth is 01.10.1962 whereas the respondents have entered his incorrect DOB as 01.06.1959 in his service book which needs to be corrected. On acquiring knowledge about his incorrect DOB, he filed an application dated 30.11.2011 followed by reminders dated 29.06.2015, 18.08.2015, 09.12.2015, 28.02.2016 and 05.04.2018 for correction of his DOB in the service record but no action was taken by the respondents. Hence the present O.A.
3. Alongside the O.A., application has been filed for condoning the delay in filing the O.A. to which objections have been filed by the respondents. In the application it has been averred that he submitted the representations as detailed above but no action was taken on his representations by the respondents. Specific case of applicant for condoning the delay is Paragraph No. 3 of the application wherein it has been mentioned that ". . . . the applicant came to Allahabad and contacted the counsel for the filing of original application since the house of the applicant very away from the Allahabad so delay has been occurred, latter that applicant Page No.3 unanimously made concern for filing the original application that also take too much time and immediately applicant file the original application. That applicant had not done any deliberate and bonafide mistake in filing such original application as well as such mistake to be considered in the pragmatic approach and delay may be condoned for the ends of justice."
4. In the objections filed on behalf of respondents, it has been stated that the procedure to alter the date of birth has been given in Master Circular 12 and para 225 of I.R.E.C. Vol-1 in which it has been provided that no request for alteration in the recorded date of birth can be entertained after completion of probation period or 3 years service whichever is earlier. Applicant has not disclosed the date and year when he came to know about the entry of his DOB. Applicant filed the first representation in 2011 after a lapse of more than 27 years, as such, the delay cannot be condoned and the case deserves to be dismissed.
5. In his rejoinder affidavit, applicant besides denying the averments of the respondents has reiterated the pleas raised by him in the O.A. as well as the application for condonation of delay.
6. Learned counsel for applicant had submitted that the arguments be heard on the application for condonation of delay on the basis of the material available on record. Page No.4
7. We have heard and considered the arguments of learned counsels for the parties and gone through the material on record. Both the learned counsels for the parties have iterated the pleas taken by them in their pleadings.
8. The applicant was appointed as Vigi vide order dated 10.01.1984. Learned counsel for the applicant would contend that the applicant was initially appointed on 10.01.1984 and his correct date of birth is 01.10.1962. On coming to know that certain wrong entries have been made in his service book regarding date of birth, he had preferred the first representation in the year 2011 and also filed documents reflecting his true DOB but the respondents took no action on his representation for correcting his DOB.
9. Learned counsel for the respondents argued that as per declaration of applicant at the time of appointment his date of birth was entered in the service book as 01.06.1959 and the applicant had also verified the entries of his service book and the competent officer also accepted the declaration made by the applicant. It has been contended that the applicant had not preferred any representation for correction of his date of birth in the service record within a stipulated period of time and therefore, it is not possible to change the entries of service book at the verge of his retirement. Learned counsel also placed Page No.5 reliance on Certificate -Physical fitness of Candidate" dated 26.04.1988 issued by Railway Medical Examiner wherein the DOB of applicant is written as 01.06.1959 and bears the thumb impression of the applicant which reflects that the applicant accepted the DOB given therein and now on the verge of retirement, he is filing a false case to extend his stay in the service.
10. Learned counsel for applicant reiterated the pleas taken by him in the application for condoning the delay in filing the O.A. On the other hand, learned counsel for the respondents submitted that the application is patently barred by period of limitation and the delay is solely attributable to the conduct of the applicant, who has been negligent in filing the O.A., as such, the reasons put-forth by applicant seeking condonation of delay cannot be justified and, therefore, the delay be not condoned being highly time barred by virtue of Section 21 of Central Administrative Tribunal Act, 1985.
11. In so far as Central Administrative Tribunal Act 1985 which governs the case of the applicant herein, Section 21 of the Act specifies limitation period. Section 21 reads as under:
(1) A Tribunal shall not admit an application,--
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of Section 20 has been made in connection with the grievance unless the application is Page No.6 made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where--
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates;
and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause
(a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or subsection (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicants satisfies the Tribunal that they had sufficient cause for not making the application within such period.
12. A reading of the said section would indicate that sub- section (1) of Section 21 provides for limitation for redressal of the grievances in clauses (a) and (b) and specifies the period of one year. Sub-section (2) amplifies the limitation of one year in respect of grievances covered under clauses (a) and (b) and an outer limit of six months in respect of grievances covered by sub- section (2) is provided. Sub-section (3) postulates that notwithstanding anything contained in sub-section (1) or sub- Page No.7 section (2), if the applicant satisfy the Tribunal that he had sufficient cause for not making the application within such period enumerated in sub-sections (1) and (2) from the date of application, the Tribunal has been given power to condone the delay, on satisfying itself that the applicant has satisfactorily explained the delay in filing the application for redressal of their grievances. When subsection (2) has given power for making applications within one year of the grievances covered under clauses (a) and (b) of subsection (1) and within the outer limit of six months in respect of the grievances covered under sub- section (2), there is no need for the applicant to give any explanation to the delay having occurred during that period. He is entitled, as a matter of right, to invoke the jurisdiction of the court for redressal of his grievances. If the application come to be filed beyond that period, then the need to give satisfactory explanation for the delay caused till date of filing of the application must be given and then the question of satisfaction of the Tribunal in that behalf would arise. Sub-section (3) starts with a non obstante clause which rubs out the effect of sub- section (2) of Section 21 and the need thereby arises to give satisfactory explanation for the delay which occasioned after the expiry of the period prescribed in sub-sections (1) and (2) thereof.
13. On the question of delay and bar of limitation, reference may be made to the decision of the Hon'ble Apex Court in Esha Page No.8 Bhattachargee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649, after discussing the entire case law on the point of condonation of delay, the Hon'ble Apex Court has culled out certain principles as under:-
"21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. There should be a liberal, pragmatic, justice-
oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
21.3. Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6. It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors Page No.9 to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12. The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -
22.1.An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. The increasing tendency to perceive delay as a non-
serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters". Page No.10
14. We have also gone through para 225 of I.R.E.C. Vol-1 and Master Circular No. 12 which clearly provide that no request for alteration in the recorded date of birth can be entered after probation period or 3 years service whichever is earlier. Even so, applicant has been unable to explain the Certificate -Physical fitness of Candidate" dated 26.04.1988 issued by Railway Medical Examiner wherein the DOB is 01.06.1959 and bears his thumb impression, as such, even if a liberal view is taken, applicant acquired knowledge of his wrong DOB in 1988, he ought to have taken recourse to administrative and legal procedure to rectify his DOB. Clearly, the present O.A. is barred by period of limitation.
15. Even, the fact of his making representations does not help the cause of applicant in taking the stand that his claim is not barred by period of limitation. On the question of filing representations and the legal effect even when direction is given by a Court cannot extend the period of limitation, it was held by Hon'ble Apex Court in:
i. Union of India & Others Vs. M.K. Sarkar (2010) 2 SCC 58:-
"15. When a belated representation in regard to a `stale' or `dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the `dead' issue or time barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a Page No.11 decision given in compliance with such direction, will extend the limitation, or erase the delay and laches"
ii. Jacob vs. Director of Geology and Mining, (2008) 10 SC 115 that:- The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the exemployee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.
10. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.
11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of 'acknowledgment of a jural relationship' to give rise to a fresh cause of action."
Page No.12
16. It is a settled principle of law that the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.
17. In the facts of the present case, the claim of the applicant seeking relief for correction of his DOB, which, if at all was available to him within the time limited by Paragraph para 225 of I.R.E.C. Vol-1 or in the year 1988 is being made the subject matter of the present O.A filed in the year 2018, it is a stale and dead Page No.13 claim and cannot be entertained at this long lapse of time. In view of the facts and circumstances of the case, we are of the opinion that the present O.A. is hopelessly barred by period of limitation.
18. On merit also, applicant has no case. On the point of correction in date of birth, the Hon'ble Apex Court in the case of Punjab and Haryana High Court at Chandigarh Vs. Megh Raj Garg and Another (2010) INSC 414 has held as under:-
"12. This Court has time and again cautioned civil courts and the High Court's against entertaining and accepting the claim made by the employees long after entering into service for correction of the recorded date of birth. In Union of India v. Harnam Singh (supra), this Court considered the question whether the employer was justified in declining the respondent's request for correction of date of birth made after thirty five years of his induction into the service and whether the Central Administrative Tribunal was justified in allowing the original application filed by him. While reversing the order of the Tribunal, this Court observed: "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 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....."
19. Similarly in Union of India Vs. Rama Swamy and Others, AIR 1997 SC 2055 the Supreme Court held that "the date of birth can be changed only if there was a bona fide mistake". It was also Page No.14 held that "the principle of estoppel will apply and hence when the Government servant had indicated a particular date of birth in his application form or any other document at the time of employment, the Court should not change that date of birth. The ratio of the above decision shall apply with greater rigidity in U.P. because here the 1974 Rules specifically provide that no representation shall be entertained regarding change of date of birth in any circumstances whatsoever".
20. In the case of State of Tamilnaidu Vs. T.N. Venugopalan reported in 1994 (6) S.S.C. 302, it has been held by Hon'ble Supreme Court that it is impermissible for an employee to seek correction of his date of birth in the service record at the fag end of service. It has categorically been held by Hon'ble Supreme court in the case of Union of India Vs. Harnam Singh reported in AIR 1993 Supreme Court 1367 that correction of date of birth in service record has to be done within the period prescribed only. It has further been reiterated by the Hon'ble Supreme court in the case of State of U.P Vs. Gulaichi reported in 2003 (6) SSC 483 that the date of birth cannot be changed at time of retirement or after the time prescribed.
21. In view of well settled law and facts of the case, we are of the opinion that the date of birth of applicant was mentioned in his service book in 1984 (year of appointment) and no effort was Page No.15 made by the applicant to get it corrected till filing of the present O.A. in the year 2018. Even the documents relied upon by the applicant showing a different date of birth is documents which have been prepared much later on. The certificate issued by the village Pradhan is based on his personal knowledge and not referable to any official record. Thus the applicant is not entitled to get his date of birth corrected at the fag-end of his retirement.
22. Applicant placed reliance upon Babu Ram v/s State of U.P., 2010 (5) ALJ 549 in support of his case. However, the facts are entirely different from the facts of the present case and of no avail to the applicant. In the cited case, direction was given to correct the DOB since it was based on the clerical mistake in the record of Board itself.
23. Accordingly, M.A. No.330/2799/2018 is rejected and the delay in filing the O.A. is not condoned. The applications for condonation of delay and O.A. are dismissed. No orders as to Costs.
(Pradeep Kumar) (Rakesh Sagar Jain)
Member (A) Member (J)
Sushil