Central Administrative Tribunal - Delhi
Acp Shanti Devi vs Union Of India on 28 June, 2011
Central Administrative Tribunal Principal Bench OA No.1532/2011 New Delhi, this the 28th day of June, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) ACP Shanti Devi, W/o Shri N.S. Shammi, R/o 1/4449 Ram Nagar Extension, Mandoli Road, Shahadara, Delhi-32. . Applicant. (By Advocate : Shri Sachin Chauhan) Versus 1. Union of India, Through the Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Govt. of NCTD, Through the Joint Secretary, Home Department, Government of NCT of Delhi, Delhi Secretariat, I.P. Estate, New Delhi. 3. The Deputy Secretary, Home Department (Police Estt.), 5th Level, C Wing Delhi Secretariat, I.P. Estate, New Delhi. 4. The Commissioner of Police, Police Headquarters, I.P. Estate, New Delhi. 5. Honble Lt. Governor of Delhi, 5, Shayam Nath Marg, Raj Niwas Marg, Delhi. 6. Joint Commissioner of Police, Provisioning & Logistics, Through Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. 7. Deputy Commissioner of Police, Provisioning & Logistics, I.P. Estate, M.S.O. Building, New Delhi. 8. Deputy Commissioner of Police, Headquarters, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. . Respondents. (By Advocates : Shri R.N.Singh with Mrs. Pratima Gupta) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
This is the second round of litigation in which the Applicant has come to this Tribunal seeking the following relief(s) :-
(i) To set aside impugned order dated 05.04.201 at annexure A-1 and to further direct the respondent to change the date of birth of the applicant in the Service record from 1.7.1951 to 31.07.1952.
(ii) Any other relief which this Honble court deems fit and proper may also be awarded to the applicant.
2. On the earlier occasion, the Applicant has come to the Tribunal in OA No.4295/2010 which after consideration of the Applicants claims, it was decided in the following manner :-
2. It seems that there is justified reason given by the applicant to change her date of birth in the said application which is to be looked into by the concerned authority but the impugned order Annexure A-1 seems to be passed as a result of non application of mind in view of the legal position stated above, therefore, the same is quashed. Respondents are directed to look into this matter afresh as all crucial documents are already available with them and in the legal matrix espoused above. Therefore, appropriate order may be passed by the concerned authority by giving opportunity of hearing to the applicant also within three months. OA is allowed. No costs.
3. Brief facts of the case would reveal that the Applicant who joined as Sub-Inspector of Police on 23.04.1976, was promoted as Inspector on 08.04.1993 and finally she joined DANIPS as Assistant Commissioner of Police (ACP) on 12.05.2008. It is the case of the Applicant that she could get her birth certificate on 01.09.2007 when she was searching few papers in her parents house at Meerut and noticed that the wrong date of birth was inadvertently conveyed to the school authorities by her grand mother. Accordingly, she represented vide her letter dated 2.9.2008 (Annexure-A2) to Respondent No.8 to change her date of birth from 01.07.1951 to 31.07.1952. It is further stated that the Deputy Commissioner of Police, PCR vide an order dated 05.09.2008 (page 26) sent the Birth Information, Municipality Meerut of the Applicant to the Senior Superintendent of Police, Meerut, UP for verification and report. On a receipt of report from the Department of Municipal Corporation of Meerut through Senior Superintendent of Police, Meerut, Addl. Deputy Commissioner of Police (PCR) forwarded the same vide his letter dated 05.12.2008 (page-27) to DCP Headquarters for necessary action. She has enclosed a copy of the Birth Information issued by the Municipal Corporation of Meerut dated 06.10.2008 (page 28). It is the case of the Applicant that her request for change of date of birth was communicated by the DCP Headquarters to Deputy Secretary (Home), Govt. of NCTD who sought for clarification on 07.01.2009 (page 31) to know, whether the Applicant was born on 31.07.1952 and none other than her. The same was sought to be supported. The Applicant submitted the clarification in her letter dated 6.2.2009 (page 32) to the Respondent that no other child was born on 01.07.1951 and only girl child was born to her parents on 31.07.1952. She also filed the High School Certificate for two sisters indicating that one Shyama Devi and another Ramo Devi were born later. Only on 31.07.1952 to the Applicants parents a girl child was born who was herself. It is the case of the Applicant that letter order dated 01.04.2009 (page 34), Deputy Commissioner of Police (Headquarters) sent to Deputy Secretary (Home) Govt. of NCT of Delhi stating that on the basis of the reports, the case of Smt. Shanti Devi (the Applicant) is recommended for change of her date of birth as 31.07.1952 instead of 01.07.1951. It is, however, stated by the Applicant that in her representation dated 03.06.2009 (page 42), she submitted the clarification that her four younger sisters were born as follows :-
Sl. No. Name Date of Birth
1. Smt. Shayama Devi 09.07.1954
2. Smt. Ramo Devi 28.12.1958
3. Smt. Rameshwari Devi 01.01.1961
4. Smt. Neera Rani 09.01.1968
4. This information was forwarded to the Govt. of NCTD, which on consideration and getting the letter dated 11.03.2010 (page 50) approved by the Lt. Governor (Respondent No.5) submitted the facts to the Ministry of Home Affairs, cadre Controlling Authority of DANIPS for taking decision on the request for change in date of birth of the Applicant from 01.07.1951 to 31.07.1952. However, in a nonspeaking and non-reasoned order, the Respondent No.1 passed an order rejecting her claim in a mechanical manner. Being aggrieved, she approached this Tribunal in OA No.4295/2010. As stated within, the Respondents were directed to re-examine the issue vide the Tribunals order dated 23.12.2010. Respondents accorded opportunity to the applicant and after hearing her passed detailed speaking and reasoned order dated 05.04.2011 (Annexure-A1), whereby after considering the Applicants request for alteration in date of birth in the light of the extant provisions and rules, it was indicated to her that change of date of birth proposed by her was not due to any bonafide clerical mistake and her request was not made within a stipulated time period, therefore, her request to change her date of birth to 31.07.1952 was not acceded to. Feeling aggrieved by the impugned order dated 05.04.2011, the Applicant is visiting the Tribunal for the second time.
5. Shri Sachin Chauhan, learned counsel for the Applicant very strenuously contends that Applicants date of birth is 31.07.1952 as indicated by the Meerut Municipality. This fact was verified by the Competent Authorities time and again and noted that a girl child was born on 31.07.1952 to the Applicants parents. It was contended that the said girl child was none other than the Applicant. It is further contended that Lt. Governor of Delhi is the Administrator who is competent to change Applicants date of birth and it is he who has agreed with the recommendations of the Department that Applicants correct date of birth is 31.07.1952. Shri Chauhan would contend that the Applicant who was initially working in Govt. of NCTD as Sub-Inspector and Inspector was inducted to DANIPS i.e. UT cadre services while she was promoted as Assistant Commissioner of Police, she was serving in Delhi and as such the Administrator (L.G. of Delhi) would be the Competent Authority to decide the issue and having recommended her change of date of birth, the Respondent No.1, the Ministry of Home Affairs was duty bound to accept the same. He also submits that there was no need even for referring the matter to the Ministry of Home Affairs as the Respondent No.5 was competent to decide the matter. In this regard, he drew my attention to the letters sent by the Deputy Secretary (Home) dated 11.03.2010, he submitted that the letter was issued with the prior approval of the Lt. Governor of Delhi and as such the change of date of birth of the Applicant having been approved by the Lt. Governor, the same should have been carried out without referring to the Ministry of Home Affairs. Shri Chauhan also produced a laminated documents of Janm Suchana Municipality, Meerut dated 02.08.1952 wherein it has been mentioned that a girl child was born on 31.07.1952. He submits that this fact has been got verified by the Respondents through the police sources of Meerut District and has been confirmed that Applicant was born as on 31.07.1952 at Meerut and the certificate issued on 06.10.2008 to that effect by the office Nagar Nigam, Meerut indicates about the birth of a girl child on 31.07.1952. His contention is that all other younger Sisters were born many years after and, therefore, on the basis of the Nagar Nigam Certificate, the respondents are duty bound to carry out change in the date of birth of the Applicant whereby Applicant would retire on 31.07.1952.
6. He referred to an order passed by the Ministry of Home Affairs in case of T.R. Kakkar, a member of the India Police Service, wherein Shri Kakkar produced the Municipality Certificate of birth as 08.12.1952 from the records maintained by the Town Committee, Fetehjung District, Attak, Pakistan. On the basis of the said information, Shri Kakkars date of birth was ordered to be continued to 08.12.1952. Shri Chauhans contention is that the present case is of similar nature where the Applicants correct date of birth has been ascertained from the Meerut Municipality and as such her date of birth should be changed.
7. On the other hand, the Respondents have entered appearance and have filed their counter reply on 09.06.2011, 14.06.2011 and 24.06.2011 controverting the contentions raised by the Applicant. Learned counsel Shri R.N. Singh represented the Respondent No.1 and learned counsel Mrs. Pratima Gupta represented other respondents. Shri R.N. Singh led the arguments in the final hearing and contended that Ministry of Home Affairs would be the Competent Authority in the service matters relating to the Applicant, as she belonged to DANIPS. To say that the Administrator (LG of Govt. of NCTD) is the Competent Authority is not correct as Cadre Controlling Authority of the DANIPS is the Ministry of Home Affairs, Union of India. He also controverted the argument by forwarding letter sent by the Govt. of NCTD to Ministry of Home Affairs placing all the claims of the Applicant for appropriate decision and the same letter having been approved by the Lt. Governor of Delhi has been mis-construed by the Applicant, as if the proposal in change of date of birth from 01.07.1951 to 31.07.1952 has the approval of the Lt. Governor of Delhi. He submits that such interpretation by the counsel for Applicant is not correct as the said letter is only a forwarding letter sending the full facts of the Applicant after the draft letter was seen by the LG of Delhi. His another contention is that in compliance of the directions of the Tribunal in OA No.4295/2010, a detailed speaking and reasoned order has been passed. He drew my attention to the impugned order dated 05.04.2011 to submit that as per the relevant rules and guidelines issued by the Ministry of Home Affairs dated 17.11.1954 and 15.12.1979, the concerned Competent Authority has taken a decision and did not find it appropriate to change the date of birth of the Applicant and, therefore, her request has not been acceded to. He further submitted that the change of date of birth and corrections could be carried out only if there was any bonafide mistake. Such is not the case in the present matter. However, he raised doubt about the dubious nature of the certificate received from the Meerut Municipality on 06.10.2008 which is at variance with the record dated 02.08.1952 produced before the Court. He, however, terms that both being at variance, the genuineness of the documents is in question. Another contention raised by Shri R.N. Singh is that the Applicants registered date of birth being 01.07.1951, and proposed change of date of birth being 31.07.1952, more than one year time is the gap between the two dates and there is no link between the Applicant and the girl child who might have been born on 31.07.1952. His contention is that when there is no proper linkage between the two, the correction in date of birth would not be admissible. He, therefore, very strongly pleads that OA is rather belated and needs to be quashed and set aside.
8. Mrs. Pratima Gupta, learned counsel appearing on behalf of the Govt. of NCTD and other Respondents endorsed the contentions raised by Shri R.N. Singh. She submitted that Govt. of NCTD did not recommend the change of date of birth of the Applicant but simply submitted full facts to the Competent Authority, namely, Ministry of Home Affairs to take a decision in the request of the Applicant. She submits that the Applicants claim being devoid of merits and the request being raised belatedly needs to be dismissed.
9. The counsel for the Respondents placed their reliance on the judgment of Honble Delhi High Court in the case of Swaranpal Singh Lamba Versus Director General of Civil Aviation and another [AISLJ v-2003(2) 74], judgment of Honble Supreme Court in Burn Standard Co. Ltd. and others versus Dinabandhu Majumdar and another,( AIR 1995 SC 1499) and G.M. Bharat Coking Coal Ltd. Versus Shub Kumar Dushad and Others [2008-8-SCC-696].
10. Having heard the rival contentions, the only issue that comes before me is :- whether the Applicants claim for carrying out corrections in her date of birth from 01.07.1951 to 31.07.1952 is admissible in the eyes of law or not.
11. Before I analyse the facts of the case, it is proper to refer to the law set by the Honble Supreme Court in the subject of change of date of birth.
12. In the case of Burn Standard Cl. Ltd case (supra) Honourable Supreme Court laid the ratio in the following way:
"Entertainment by High Courts of writ ap-plications made by employees of the Gov-ernment or its instrumentalities at the fag end of their services and when they are due for retirement from their services, is unwar-ranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its in-strumentalities will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employ-ees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extraordinary nature of the jurisdic-tion vested in the High Courts under Article 226 of the Constitution is not meant to make employees of Government or its instrumen-talities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, plac-ing reliance on the so-called newly found material. The fact that an employee of Gov-ernment or its instrumentality who will be in service for over decades, with no objec-tion whatsoever raised as to his date of birth accepted by the employers as correct, when all of a sudden comes forward towards the fag end of his service career with a writ ap-plication before the High Court seeking cor-rection of his date of birth in his Service Record, the very conduct of non- raising of an objection in the matter by the employee, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his 'Service and Leave Record' could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court."
13. In the matters of Secretary & Commissioner, Home Department & Ors. versus R. Kirubakaran, (JT 1993 (5) SC 404), Honourable Supreme Court held:
"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 the 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 clear case on the basis of materials which can be held to be conclu-sive in nature, is made out by the respon-dent, the Court or the Tribunal should not issue a direction, on the basis of materials which make such claim only plausible and before any such direction is issued, the Court 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 pro-cedure prescribed, and within time fixed by any rule or order. The onus is on the appli-cant to prove about the wrong recording of his date of birth in his service book.
.......As such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the Court or the Tribunal concerned should be more cautious because of the growing tendency amongst a section of pub-lic servants, to raise such a dispute, with-out explaining as to why this question was not raised earlier. In the facts and circum-stances of the case, it is not possible to up hold the finding recorded by the Tribunal."
14. In the case of State of Gujarat versus Vali Mohd. Dosabhai Sindhi (2006 STPL(LE) 36977SC) Honourable Supreme Court delineated the role for the courts and Tribunals in the matter of correction in the date of birth. The Apex Court observed that an application for correction of the date of birth should not be dealt with by the Courts, Tribunal or the High Court keeping in view only the public servant concerned. 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 loose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant 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 and that too within a reasonable time as provided in the rules governing the service, the Court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, 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. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their date of birth in the service books. The Court or the Tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediate junior.
15. In a catena of judgments of Honble Supreme Court, namely, Chief Medical Officer Versus Khadeer Khadri, [(1995) 2 SCC 82], Govt. of A.P. Versus M. Rangadhar Mallik [1993 Supp (1) SCC 763], Mohd. Yunus Khan Versus U.P. Power Corpn. Ltd., [(2009) 1 SCC 80], State of Gujarat Versus Vali Mohd. Dosabhai Sindhi [(2006) 6 SCC 537]. State of M.P. Versus Mohanlal Sharma [(2002) 7 SCC 719), State of Punjab Versus S.C. Chadha [(2004) 3 SCC 394], State of U.P. Versus Gulaichi [(2003) 6 SCC 483] the Honble Supreme Court has held that unless a clear case on the basis of the materials which can be held as conclusive in nature is made out by the Applicant, that too within a reasonable time (in the present case such reasonable time has been prescribed as 5 years from the date of service), the Courts and Tribunals should not issue any direction or make any declaration on the basis of some information which is being brought in support by very light evidence.
16. It is the Applicant who has to produce the correct evidence in support of her claim which would come absolutely irrefutable proof relating to her date of birth. In the present case, the only document that the Applicant has brought forward is the information supposed to have been given by the Meerut Municipality about birth of a girl child to the Applicants parents on 31.07.1952. On the other hand, her date of birth as appeared in the School Certificates indicated as 01.07.1951. In support of her younger sisters date of birth, she has relied on the certificates issued by the Schools whereas she has not brought the documents of the Municipality to show as to on what date her younger sisters were born. She is not able to show before the Tribunal that no girl child was born to her parents on 01.07.1951. It is also not disputed that at the time of joining service, she has declared her date of birth as 01.07.1951. She has raised the issue to correct the same in the year 2008. It is admitted fact that the Applicant has entered her date of birth as 01.07.1951 in the records of the service book when she entered service. Both the parties, admitted the fact that even the School Leaving Certificate on the basis of which such entries were made in the Service Book and accepted by the concerned Respondents shows her date of birth as 01.07.1951. It is stated that only in 2008, she could come to know of a document where her date of birth is 31.07.1952. The counsel for Respondents have also raised doubt about the genuineness of the document which shows that a girl child was born on 31.07.1952. No link could be established by the Applicant to show that she is the girl child who was born to her parents as on 31.07.1952. In view of the above, I find that no conclusive evidence has been produced by the Applicant. What document has been produced is rather too late in her service career, i.e. in the year 2008 after a lapse of nearly 32 years of service, it would be difficult for this Tribunal to accept the same as concrete evidence which does not establish a direct linkage that the girl child born is the Applicant. Therefore, I am constrained and do not accept the Applicants plea for change and correction of date of birth.
17. Considering the above facts and circumstances of the case and by the well established law set by the Honble Supreme Court, I come to the considered conclusion that Applicant has not made out a case calling for interference by the Tribunal to direct the Respondents in this regard. The Applicant has failed miserably to convince me to issue any direction for change in her date of birth from 01.07.1951 to 31.07.1952. Resultantly, the Original Application being devoid of merits is dismissed leaving the parties to bear their respective costs. Registry is directed to issue this order to the parties on or before 29.06.2011.
(Dr. Ramesh Chandra Panda) Member (A) /rk/