Central Administrative Tribunal - Delhi
D. R. Dhingra S/O Jiwan Das vs Union Of India Through on 4 August, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.1267/2008 This the 4th day of August, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. (MRS.) VEENA CHHOTRAY, MEMBER (A) D. R. Dhingra S/O Jiwan Das, R/o 657, Sector-6, Panchkula, Haryana. Applicant ( By Shri A. K. Behera with Ms. Jasmine Ahmed and Shri P. M. Horo, Advocates ) Versus 1. Union of India through Secretary, Ministry of Personnel, Public Grievances & Pensions, Government of India, North Block, New Delhi-110001. 2. Chief Secretary, State of Haryana, Haryana Secretariat, Chandigarh. Respondents (By Shri S. K. Dubey with Shri T. C. Gupta and Shri Manjit Singh, Addl. A.G. for State of Haryana with Shri Yash Pal Rana, Advocates) O R D E R Justice V. K. Bali, Chairman:
D. R. Dhingra, an officer of the Indian Administrative Service (Haryana Cadre) implores this Tribunal to set at naught the orders passed by the Government of India, the 1st respondent herein, on every occasion rejecting his plea for change in date of his birth even though, the present may be a rarest of rare cases where an employee has not only produced such irrefutable and unimpeachable evidence showing that his date of birth recorded in the official records is incorrect, but where all concerned authorities have accepted his stand, upon such evidence. Whereas, the 2nd respondent, State of Haryana, having itself recommended by a detailed communication, would support the case of the applicant, the 1st respondent without even joining the issue with regard to the actual and corrected date of birth of the applicant, would yet oppose the cause of the applicant on the rigor of rule 16-A of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (hereinafter to be referred as the Rules of 1958). It is the case of the first respondent that the date of birth as accepted by the Central Government would not be subject to any alteration except where it is established that a bona fide clerical mistake has been committed in accepting the date of birth under sub-rule (2) or (3) of rule 16-A, and that while accepting the date of birth of the applicant as originally recorded, there was no bona fide clerical mistake. The 1st respondent would also seek dismissal of the Original Application on the ground of the applicant approaching the concerned authorities and the Tribunal at such distance of time that no relief can be granted to him.
2. The facts of this case are rather peculiar. Before we may, therefore, comment and adjudicate upon rival contentions of learned counsel representing the parties, it shall be useful to give resume of facts culminating into filing of the present Application. As per the case set up by the applicant emanating from pleadings made in this and the earlier Application filed by him bearing OA No.2207/2007, and the accompanying documents, insofar as the same relate to the correct date of his birth, the parents of the applicant got married in November, 1949. His elder sister Sheela was born on 21.7.1951 as per the certificate issued by the District Registrar (Births & Deaths), Office of Civil Surgeon, Rohtak, which would show that she was the first child of his parents born at Village Anwal, District Rohtak. The applicant is stated to be the second child born to his parents, and as per the certificate issued by Government Primary School, Anwal, was born on 6.5.1952. The certificate issued by Head Master, Government High School, Lahli (then Government Middle School, Lahli) also mentions his date of birth as 6.5.1952. The certificate issued by the District Education Officer, Rohtak, pertaining to the middle standard examination also mentions his date of birth as 6.5.1952. Younger brother of the applicant was born on 26.11.1955. It has been the case of the applicant before the concerned authorities in representations made by him that once his elder sister was born on 21.7.1951, he could not have been born on 6.5.1948, i.e., earlier to his elder sister. To authenticate that he was actually born on 6.5.1952, the applicant also relied upon initial school certificates up to middle. It is his case that the middle standard examination passed by him was from the State Education Board, and it is not that the certificate regarding that had been issued by the school authorities. It is further the case of the applicant that despite the facts as mentioned above, somehow in the matriculation certificate issued by the Punjab University, his date of birth as 6.5.1948 came to be recorded wrongly, wherein even though, the month and day was correctly recorded, but the year was incorrectly recorded as 1948. As soon as he came to know about the discrepancy in his date of birth so recorded in his matriculation certificate, he moved the Punjab University for correction of his date of birth in the matriculation certificate. A decision was taken in the Syndicate proceedings held on 20.1.1997 to rectify the mistake in his matriculation certificate, and thereafter the said University issued a revised matriculation certificate showing his date of birth as 6.5.1952. The applicant made representation on 28.5.1993 to Chief Secretary, Government of Haryana for rectification of his date of birth. The same was, however, rejected vide letter dated 12.7.1993. However, inasmuch as, by the time the representation aforesaid came to be rejected, and the Punjab University had not corrected his date of birth in the matriculation certificate, on such correction having been made by the University, he made yet another representation dated 27.4.1997, which too came to be rejected vide letter dated 1.7.1997. It has been the case of the applicant that both the orders dated 12.7.1993 and 1.7.1997 had been passed rejecting his representation on the premise that he had taken the advantage of the wrong date of birth recorded as 6.5.1948 by securing employment as Assistant Registrar, cooperative Societies, Haryana, and that had his date of birth been 6.5.1952, he would not have been eligible for securing appointment on the said post. It was further stated in the orders that the applicant had already availed the benefit in the matter of securing government employment on the basis of 6.5.1948 as his date of birth and, therefore, his request for change of date of birth to 6.5.1992 on the basis of the duplicate matriculation issued by Punjab University on 6.2.1997 could not be acceded to. The record, and in particular representation dated nil (Annexure A-4) made by the applicant would reveal that the applicant was not satisfied with the orders referred to above rejecting his two representations, and thus made another representation Annexure A-4, wherein he further stated that the orders passed by the Government proceeded on totally wrong premise that he had taken advantage of his date of birth being 6.5.1948. He stated in the representation that he had not taken any advantage of his wrong date of birth 6.5.1948. The applicant then stated that an advertisement was issued in October, 1972 for holding Haryana Civil Service (Executive Branch) and other allied Services examination in March, 1973. He applied in pursuance of the said advertisement and passed the examination held in June, 1973, and was thereafter called for interview/viva voce test on 7.2.1974. The post of Assistant Registrar, Cooperative Societies was governed at the relevant time by the Punjab State Cooperative Service Class II Rules, 1958. As per rule 6 of the Rules aforesaid which provided for qualifications of candidates by direct appointment, a candidate to be eligible should have attained the age of 21 years and not more than 25 years on the 1st October, preceding the date on which he was to be interviewed by the Commission for appointment to the service. He quoted rule 6 of the said Rules in support of the plea raised by him, as mentioned above. The interview was held on 7.2.1974, and, therefore, the relevant date for calculating the age was to be 1st of October, 1973, and on that date, the applicant pleaded, even taking his date of birth to be 6.5.1952, he would have been more than 21 years of age on the relevant date and would be eligible for appointment as Assistant Registrar. He mentioned that by no stretch of imagination it could be said that he had taken any benefit of the wrong date of birth, i.e., 6.5.1948, and that the reason given in the order rejecting his representation was fallacious. He further stated that as per rule 9 of the said Rules, a candidate selected for direct appointment as Assistant Registrar had to undergo a course of training for two years before being appointed to the Service and would pass such departmental examination as may be prescribed by the Government. After his selection for the said post, the applicant was asked in November, 1974 to undergo training for a period of two years before his appointment. He also stated that the orders rejecting his representations were passed keeping in mind the new Rules of 1997, known as the Haryana State Cooperative (Group B) Service Rules, 1997, according to which no person less than 21 years of age on or before the last date of submission of the application to the Commission, would be appointed to any post in the Service by direct recruitment. He also pleaded that the service rules applicable on the date of issuance of the advertisement and making of the selection alone would be relevant and applicable and any subsequent amendment to the rules could not be taken into consideration. Inasmuch as, the only reason given in the orders rejecting representations of the applicant that he had taken advantage of his wrong date of birth in securing employment with the Government of Haryana was wrong, the applicant prayed that justice be done to him and rectification/correction be made in his date of birth, so as to change it from 6.5.1948 to 6.5.1952. With the representation aforesaid, he annexed various documents, i.e., a certificate showing 21.7.1951 as the date of birth of his elder sister (Annexure-I); school leaving certificate showing his date of birth as 6.5.1952 (Annexure-II); school leaving certificate of middle school; certificate issued by Education Department, Haryana (Annexure-III colly.); corrected matriculation certificate issued by Punjab University (Annexure-VII); and some other certificates. In all the certificates referred to above, his date of birth is mentioned as 6.5.1952. Of course, whereas, his certificates up to middle, which too he passed from the State Education Board, there is no correction and the date of birth recorded is 6.5.1952, in the certificate Annexure-VII issued by the Punjab University, the corrected date of birth is 6.5.1952. The applicant also annexed some other documents pertaining to his taking examination for the post of Assistant Registrar.
3. There is no date on the representation of the applicant, as mentioned above, but it appears from the records of the case that the Chief Secretary, Government of Haryana, addressed a letter to the Secretary, Government of India, Ministry of Personnel, Public Grievances & Pensions, on 28.6.2007. It would appear from the communication aforesaid that the representation of the applicant with regard to change of his date of birth was placed before the Government of India, and the State Government was required to give its comments. The comments of the State Government annexed with the communication aforesaid would reveal that the State Government traced the history of the case referring to the earlier representations made by the applicant, ground on which the same were rejected, and detailed reasons for its finding that the applicant had submitted irrefutable proof of his actual date of birth as being 6.5.1952 instead of 6.5.1948. Since the order contains cogent reasons for arriving at a finding that the finding as mentioned above, it would be useful to reproduce the same:
COMMENTS OF THE STATE GOVERNMENT ON THE REPRESENTATION OF SH. D. R. DHINGRA, IAS (HY:88) REGARDING CHANGE OF DATE OF BIRTH The factual position of the case is that Sh. D. R. Dhingra, IAS has been on regular intervals making representations to the State Government as well as Central government for correction of his date of birth. Sh. Dhingra, IAS had first submitted his representation in 1993 which was rejected by the State government on the grounds that he had taken the advantage of the date of birth by securing employment under the Government. He again made a representation to Government of India, Ministry of Personnel, P.G. & Pensions, Department of Personnel & Training in 1997 and the same was rejected by the Central government on the grounds that Sh. Dhingra, IAS had taken the advantage of securing Government employment on the basis of the date of birth i.e. 6.5.48 sought to be corrected. Another representation was made by him to the State government which was also rejected on the same grounds as stated above.
In his fresh representation, Sh. D.R.Dhingra, IAS has submitted that his earlier representations for correction of his date of birth from 6.5.1948 to 6.5.1952 have been rejected by the Government on wrong premise and that he had not taken any advantage of securing Government employment on the basis of his wrong date of birth i.e. 6.5.1948 as he was otherwise also eligible had his date of birth been 6.5.1952. Shri D.R. Dhingra, IAS has submitted that in the year 1972, the posts of H.C.S. (Executive Branch) were never advertised by the Haryana Public Service Commission and only posts of allied services viz. Assistant Registrar, Cooperative Societies and Tehsildar Grade A had been advertised by the Commission. He was selected as Assistant Registrar, Cooperative Societies. As per the advertisement the applicant should have attained the age of 21 years as on 1.1.1973. Shri Dhingra has contended that as per the provisions of Rule 6(b) of the Punjab State Cooperative Societies Service, Class II Rules regulating the conditions of service of members, as notified vide Haryana Government, Development Department, cooperative Societies, Notification dated 24th April, 1958, the applicant should have attained the age of 21 years and is not more than 25 years on the 1st day of October, preceding the date on which he is interviewed by the commission for appointment to the service. The interview for the said post had been conducted by the Commission in February, 1974, therefore, had his date of birth been correctly recorded in his Matriculation examination which is 6.5.1952 he had attained the age of 21 years as on 1st October, 1973 and was thus eligible for appointment as Assistant Registrar, cooperative Societies as per provisions of the rules referred to above. He has further contended that as per law laid down by the Honble Punjab & Haryana High Court in the case of Kanwaljit Kaur Vs. State of Punjab 2000 (2) S.C.T. 114 wherein it has been held that the qualifications etc. prescribed under the statutory rules shall prevail over those specified in the advertisement and the Government and its functionaries are not entitled to make recruitment de hors the qualifications etc. prescribed under the statutory Service Rules as such while calculating his age for eligibility for appointment reliance has to be made on the provisions of the rules and not on the advertisement which contains a specified date which is against the statutory rules. The contentions made by Sh. Dhingra, IAS in his representation have force. No vacancies of HCS (Executive Branch) had ever been advertised by the State Government in the year 1972. The rules regulating the minimum and maximum age limit for appointment to HCS (Executive Branch) are different than that of allied services. His earlier representations had been rejected on the wrong analogy that had his date of birth been 6.5.1952 he would not have been eligible for appointment as Assistant Registrar, Cooperative Societies. It has further been observed that as per the Middle Standard School Examination certificate issued by Education Department, Haryana his date of birth in the certificate has been recorded as 6.5.1952. However, his date of birth in the Matriculation Examination conducted by Punjab University was recorded as 6.5.1948 which has since been corrected by the Punjab University also. Thus his actual date of birth as per documents submitted by him is 6.5.1952. No benefit has accrued to Sh. Dhingra, IAS in the matter of securing employment in the Government on the basis of his wrong date of birth. The birth certificates of his other brothers and sisters issued by the Registrar of Births & Deaths also verifies that the actual date of birth of Sh. D.R. Dhingra, IAS is 6.5.1952. In the decision of the Supreme Court in Union of India Vs. Harman Singh reported in (1993) 2 SCC 162 it has been observed that it would be 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. Reference is also invited to judgment dated 9.2.2004 given by the Honble Apex Court in Civil appeal No.854 of 2004 State of Punjab Vs. S. C. Chadha (2004) 3 Supreme Court Cases 394. It is further submitted that the Honble Supreme Court in the case of M/s Hindustan Sugar Mills Vs. the State of Rajasthan AIR 1981 SC 1681 observed that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizen by adopting legalistic attitude but should do what fairness and justice demand. Sh. D.R. Dhingra, IAS has submitted irrefutable proof of his actual date of birth as being 6.5.1952 instead of 6.5.1948.
4. Even though, we have already referred to the correction brought about in the matriculation certificate of the applicant, we may still refer to the relevant proceedings of the Syndicate of the University. It would appear that the Syndicate constituted a committee to deal with applications for correction of date of birth. Para 26 of the minutes of the Syndicate proceedings dated 20.1.1997 reads, thus:
26. Considered recommendations of the Committee by the Syndicate to deal with the applications for corrections in date of birth dated 27-12-1996, and RESOLVED: That the date of birth of the following applicants be corrected as indicated against each case:-
Sr. No. Name/ Fathers name of the applicant Year & Roll No. of Matric exam Correction in date of birth allowed Reasons for correction 2 Sh. Desh Raj S/o Sh. Jiwan Dass Feb. 1965 190971 6-5-1948 to 6-5-1952 On the basis of School record, the applicant joined the 6th class at Govt. Middle School, Lohli, The. & Distt. Rohtak where his date of birth is recorded as 6-5-1952. The Admission & Withdrawal Register has been verified by A.R. (R&S). The date of birth of the applicant in the Middle Standard Exam. Certificate is also 6-5-1952 We may also mention that even though, the comments of the State Government reproduced above do refer to birth certificates of brother and sisters of the applicant issued by Registrar, Births & Deaths, we may make a pertinent mention that the elder sister of the applicant Sheela, as per relevant certificates, was born on 21.7.1951, whereas the incorrect date of birth of the applicant is shown as 6.5.1948, which would be before the date of birth of his elder sister, which is impossible. We may also mention that the entire record pertaining to date of birth of the applicant from his birth up to passing of his middle school examination, which was conducted by the State Education Board, would show the date of birth of the applicant as 6.5.1952.
5. Insofar as, the service graph of the applicant and the various representations made by him with regard to change in his date of birth, are concerned, it would appear from the pleadings that the applicant had initially applied for the post of Assistant Registrar, Cooperative Societies in the State of Haryana in 1972/1973. He was selected and sent for training. While undergoing training, he applied and was selected for appointment in the Haryana State Civil Service. At the time of appointment in the State Civil Service the date of birth reflected in the matriculation certificate of the applicant, i.e., 6.5.1948, was entered in his service book. The applicant was selected and appointed to the Indian Administrative Service in April, 1993. It is his case that when he came to know about the erroneous recording of his date of birth both in the matriculation certificate as well as in his service book, after collecting irrefutable evidence about his correct date of birth, i.e., 6.5.1952, he applied for correction of the same in official records. First such representation was made by him on 20.5.1993. The same was, however, rejected by the State Government on 12.7.1993. The applicant realized that his date of birth could not be corrected unless he had applied for correction of the same in his matriculation certificate first, and that being so, he applied for correction of his date of birth in the matriculation certificate. On the basis of representation and evidence produced by him, the Punjab University in its Syndicate proceedings dated 20.1.1997 vide para 26 allowed the correction of date of birth from 6.5.1948 to 6.5.1952. After his date of birth was corrected by the University, and a corrected matriculation certificate was issued, he made further representation dated 27.4.1997 to the State of Haryana for correction of his date of birth in official records. This representation was also rejected vide order/letter dated 1.7.1997 holding that since the applicant had taken advantage of his date of birth as 6.5.1948 at the time of initial recruitment as Assistant Registrar, Cooperative Societies, his request for change of date of birth from 6.5.1948 to 6.5.1952 cannot be acceded to. Meanwhile, the Government of India also rejected his representation on the analogy of the State Government, as per their letter dated 9.5.1997. The applicant has given the factual position showing that he had not taken advantage of his wrong date of birth and even if, his date of birth was to be correctly recorded, he would have been within the prescribed age for appointment, but there shall be no need to give detailed facts on that count, as it has been accepted by the State of Haryana that the applicant indeed had not taken any advantage of his wrong date of birth, and even the Government of India has not disputed this factual aspect of the case. Meanwhile, the turn of the applicant for promotion to IAS came. For this purpose, he was required to fill up the requisite proforma giving his particulars as well as his date of birth. It is the case of the applicant that in the said proforma he specifically mentioned that though 6.5.1948 had been reflected as his date of birth in the records of the State Government, the representation regarding correction of date of birth was pending with the State Government. The applicant was selected and appointed to IAS in April, 1993. It is his case that even after his appointment to IAS, he continued to pursue his representation regarding the correct date of birth with the State Government. Thereafter, he made a further comprehensive representation, mention whereof has been made above. This representation was thoroughly examined by the State Government, which found the same to be meritorious with the conclusion that the evidence produced by the applicant for correction of his date of birth was irrefutable. The State Government made recommendation to the Government of India for correction of his date of birth in official records. The State Government could not do the needful itself as by that time, his service record was not in its possession and had instead been sent to the Government of India. The representation of the applicant, despite strong recommendation made by the State Government, vide orders dated 9.10.2007 came to be rejected by the Government of India, thus constraining the applicant to file his first OA No.2207/2007. It is significant to mention that the only ground while rejecting the representation of the applicant was the rigor of rule 16-A of the Rules of 1958. The matter came up before a single Bench of this Tribunal and vide judgment dated 13.3.2008, the OA was partly allowed. Operative part of the order reads, thus:
18. In the result, for the foregoing reasons, OA is partly allowed. Impugned order is set aside. The matter is remitted back to respondent No.1 to be re-examined in the context of the observations made above and in the light of the decision of the Apex Court in S. Janardhan Rao (supra) and a final decision shall be taken in the wake of retirement on superannuation of applicant approaching on 31.5.2008, within a period of three weeks from the date of receipt of a copy of this order, by passing a reasoned order. No costs. It is the case of the applicant that after the judgment recorded in OA No.2207/2007 by this Tribunal, he continuously and persistently pursued the case with the 1st respondent for accepting and incorporating 6.5.1952 as his date of birth in his service record. The 1st respondent, however, kept on assuring the applicant that it was doing the needful to incorporate his correct date of birth in the records, and yet it was not done, even though the Tribunal had directed to pass final order within three weeks. It is further the case of the applicant that he came to understand only very lately that the 1st respondent was playing hide and seek with the judgment/order of this Tribunal in OA No.2207/2007, and was not deliberately passing any order within the stipulated time, and kept on buying time by giving false assurances to the applicant thereby dissuading him from initiating any further legal proceedings immediately after expiry of three weeks. It is then his case that the 1st respondent was planning to surreptitiously retire him on 31.5.2008 so as to frustrate his case, and that on coming to know of the said plan of the respondent, the applicant immediately filed OA No.1100/2008 in this Tribunal, which was heard on 28.5.2008, on which date the Tribunal while taking stock of the totality of the facts, granted a stay of seven days from the date of order that may be passed by the Central Government in pursuance of the directions contained in its earlier order dated 13.3.2008 in OA No.2207/2007. We need not reproduce the order dated 28.5.2008 in its entirety. Suffice it may, however, to mention that while granting stay limited only for seven days when order may be passed pursuant to directions of this Tribunal in OA No.2207/2007, the brief background of the case and the basic contentions raised by the counsel were noted and reliance was also placed on the judgment of the Honble Supreme Court in State of Punjab v S. C. Chadha [(2004) 3 SCC 394]. It is the case of the applicant that he had informed the State Government of the order passed by this Tribunal on the same day about the stay, and the State Government in turn intimated the same to the 1st respondent on 28.5.2008, and the 1st respondent immediately passed the order. It is pleaded that the 1st respondent had already kept a draft order ready and immediately ante dated the said order by one day and passed an order dated 27.5.2008 only on 28.5.2008 rejecting the representation of the applicant. It is this order which has now been challenged by the applicant, which would be his third successive Application for the same cause of action. When the OA No.1100/2008 came up for hearing and the applicant was confronted with the order aforesaid, the same was dismissed of vide order dated 3.6.2008. While dismissing the OA with permission to file a fresh one where the order now impugned may also be challenged, we ordered that the said order be not given effect to or implemented for a period of two weeks.
6. Present OA came up for hearing before a Vacation Bench (single Bench) on 17.6.2008, when the following order came to be passed:
This order has to be read in continuation of the order dated 3.6.2008 in OA 1100/2008, which is reproduced below:-
4. We would not go into the merits of the OA, which is still to be filed. However, in totality of the facts and circumstances of the case, and because of ensuing summer vacations from today, we would, while dismissing this Application with permission to file a fresh one, where the order dated 27.5.2008 be also challenged, order that the order dated 27.5.2008 be not given effect to or implemented for a period of two weeks from today. DASTI.
2. By the aforesaid order, the operation of the DOP&Ts order dated 27.5.2008 by which the applicants request for changing his date of birth from 6.5.1948 to 6.5.1952 has been rejected has been stayed. Subsequently the DOP&T sent a copy of this order dated 27.5.2008 to the Government of Haryana by a letter dated 30.5.2008, which is as follows:-
To The Chief Secretary, Government of Haryana, Chandigarh.
Subject: Retirement of Shri D. R. Dhingra, IAS (HY:88) Sir, I am directed to refer to the State Governments letter No.29/17/91-23(I) dated 29/5/2008 on the above subject. In this regard, it is noted that Honble Central Administrative Tribunal, Principal Bench, New Delhi has passed its directions on 28.5.2008 in OA No.1100/2008 filed by Shri D.R. Dhingra Vs. UOI and Others. However, it is to be indicated that pursuant to the order dated 13/3/2008 passed by the Honble Central Administrative Tribunal, Principal Bench, New Delhi in OA No.2207/2007 D.R. Dhingra vs. UOI and Others) the Central Government had already passed the order on 27/5/2008 i.e. before the Honble Tribunals direction on 28/5/2008 in OA No.1100/2008 filed by Shri Dhingra Vs. UOI and Others which was duly sent by Speed Post to the Government of Haryana on 27/5/2008 and a copy of the order was delivered to the Resident Commissioner, government of Haryanas Office on 28/5/2008 and information about the same was also faxed to the Chief Secretary, Government of Haryana on 28/5/2008 in the forenoon.
2. In view of the above, the State Government may take necessary action for the retirement of Shri D.R. Dhingra, IAS (HY:88) in accordance with the rules.
Yours faithfully, (Chaitanya Prasad) Director (Services) Tel. No.23093591
3. On the basis of this letter from DOP&T addressed to the Government of Haryana, the order dated 30.5.2008 retiring the applicant from service was issued.
4. However, it is contended by the learned counsel for the applicant that the applicant is still continuing in service on the basis of these stay of order dated 27.05.2008 granted by this Tribunal as seen from Annex A-4, which is a letter from the applicant to the Chief Secretary, Haryana. Shri A.K. Behera, learned counsel for the applicant states that the Applicant continues to service the Government as before.
5. The learned counsel for the Applicant contends that the balance of convenience is in favour of the Applicant. The Applicant would suffer irreparable loss if the orders dated 27.05.2008 and 30.05.2008 are not stayed.
6. Issue notice to the respondents, returnable on 1.7.2008.
7. The order dated 27.5.2008 of the Department of Personnel and Training is stayed till the next date of hearing as well as the order dated 30.5.2008, retiring the applicant from service is also stayed till the next date of hearing. The arguments regarding further stay would be heard on the next date of hearing.
Issue DASTI. We are conscious that the present is a case of change of date of birth and in consequence thereof, change in the date of retirement of the applicant. The matter required to be disposed of as early as possible, particularly when stay was granted. Some of our interim orders passed from time to time would reflect our view to finalise this case as early as possible. Despite that, there has indeed been some delay. We may not mention reasons why this matter could not be disposed of earlier. The interim orders passed from time to time would sufficiently and clearly indicate the reasons for delay. We may only mention that if perhaps, the applicant was to indulge in seeking adjournments, the same would not have been allowed and indeed, but for one date when the counsel for the applicant was indisposed, no adjournment was sought on behalf of the applicant.
7. Pursuant to notice issued by this Tribunal, two separate counter replies one on behalf of the 1st respondent and the other on behalf of the 2nd respondent, have been filed. During the course of hearing, on one occasion, counsel for the 2nd respondent appeared. He supported the recommendations made by the State Government to the 1st respondent for effecting change in the date of birth of the applicant. Insofar as, the 1st respondent is concerned, the allegation of the applicant with regard to ante dating the impugned order has been firmly denied. The cause of the applicant has been primarily opposed on the ground that selection of State Civil Service (SCS) officers for promotion to IAS is governed by the IAS (Appointment by Promotion) Regulations, 1955. In terms of third proviso to regulation 5(2) of the said Regulations, the selection committee is required to consider only those members of the SCS who are substantive in SCS and have completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State government. While reproducing regulation 5(3) it has been averred that in order to ascertain that the SCS officers (whose names are forwarded by the State Government to UPSC) fulfill the eligibility criteria mentioned therein, gradation list and eligibility-cum-seniority list of SCS officers are also provided by the State Government to UPSC. The gradation list/eligibility-cum-seniority list inter alia includes the information like name, date of birth, date of initial appointment in SCS etc. The selection committee duly reflects the date of birth of officers as mentioned in the gradation list/eligibility-cum-seniority list provided by the State Government, in the minutes of the meeting. Subsequently, having obtained the views of Government of India and State government, the select list is approved by UPSC under regulation 7(3) of the Regulations aforesaid. Thereafter the DOP&T notifies the select list and appointment of officers included in the select list to IAS. In the notification, the same date of birth of the officer is mentioned which has been mentioned in the minutes of the selection committee. It is the gradation list/eligibility-cum-seniority list prepared by the State Government concerned which provides the date of birth to the selection committee. The same date of birth is reflected in the minutes of the meeting of the selection committee and also in the notification(s) issued by the DOP&T. It is then pleaded that it is not a question of acceptance of date of birth by the selection committee, and it is rather a statement of fact provided by the State Government and duly entered by UPSC and DOP&T in their relevant records, and that the UPSC and DOP&T have no other source to verify the veracity of date of birth of an officer included in the select list but to rely on the documents provided by the State Government concerned, who is the custodian of records pertaining to SCS officers. Reliance is then placed upon rule 16 of the Rules of 1958 in support of the stand taken by the 1st respondent.
8. The applicant has filed a rejoinder, by and large refuting the stand taken by the first respondent in its written statement, and reiterating the one reflected in the OA.
9. Insofar as, the issue with regard to actual date of birth of the applicant is concerned, the same does not appear to be much in dispute. It is significant to mention that in the counter reply filed on behalf of the respondents there is not even a whisper that the applicant is trying to, or has by manipulation, managed to effect the change in his date of birth. In the order rejecting the representation of the applicant vide order dated 9.10.2007 also, there is not a word mentioned regarding that. Inasmuch as, it is in the first OA No.2207/2007 where the applicant has given details of the facts culminating into change of his date of birth on the recommendations made by the State Government, we have seen the records of the said OA, and find that even in the counter reply filed by the first respondent therein, there is no rebuttal. In the impugned order now passed, which is a detailed one as well, there is hardly any challenge to the date of birth of the applicant as 6.5.1952. The present is not thus the kind of usual cases we get pertaining to change in date of birth where employees come on some imaginary stories like coming to know of their correct date of birth from their old or grown up relations, or from their family purohits. Present is a case where the applicant has indeed been able to bring on record, and to the satisfaction of all concerned, be it the Punjab University or the State Government, irrefutable evidence of his actual date of birth being 6.5.1952. We may still recall that the parents of the applicant got married in November, 1949 and his elder sister was born on 21.7.1951. The date of birth 6.5.1948 as recorded in the original matriculation certificate of the applicant, could not be correct, as surely he could not have been born before his parents were married and before his elder sister was born. The applicant brought on record all his conceivable certificates up to middle standard, which too he passed from the State Education Board, which are more than thirty years old and have presumption of truth under section 90 of the Evidence Act. The birth and death certificates as also middle school examination certificate were in the custody of such authorities which, in the nature of their duties, carry out such purposes. The said certificates were thus given by proper authorities and would meet the requirement under section 90 of the Evidence Act.
10. On the basis of pleadings made in the Application and the accompanying documents, fully detailed above, as also non rebuttal of the plea of the applicant with regard to his actual date of birth, a firm finding has to be recorded that the applicant did produce irrefutable and/or unimpeachable evidence to show that he was actually born on 6.5.1952 and not on 6.5.1948. It appears that after the State Government made its recommendation with regard to authenticity of the documents and irrefutable evidence produced by the applicant, his date of birth being 6.5.1952 became a non-issue. Normally, with the finding as recorded above, the applicant would have been entitled to the relief asked for by him, but his luck would still elude him because of rigor of rule 16-A of the Rules of 1958, which, it appears, would permit change of date of birth only where it is established that a bona fide clerical mistake has been committed in accepting the date of birth under sub-rule (2) or (3) of rule 16-A, eliminating such correction to be made even where it may be an overwhelmingly proved case of wrong date of birth mentioned in official records. Having said so, we may give our reasons. Rule 16-A, on which alone the cause of the applicant has been opposed, reads, thus:
16-A. Acceptance of date of birth:-
(1) For the purpose of determination of the date of superannuation of a member of the service, such date shall be calculated with reference to the date of his birth as accepted by the Central Government under this rule.
(2) In relation of a person appointed, after the commencement of All India Services (Death-cum-Retirement Benefits) Amendment Rules, 1971,
(a) the Indian Administrative Service under clause (4) or clause (aa) of sub-rule (1) of rule 4 of the Indian Administrative Service (Recruitment) Rules, 1954; or
(b) the Indian Police Service under clause (a) or clause (aa) of sub-rule (1) of rule 4 of the Indian Police Service (Retirement) Rules, 1954; or
(c) the Indian Forest Service under clause (a) or clause (aa) of sub-rule (2) of rule 4 of the Indian Forest Service (Recruitment) Rules, 1966;
the date of birth as declared by such person in the application for recruitment to the service shall be accepted by the Central Government, as the date of birth of such person.
(3) In relation to a person to whom sub-rule (2) does not apply, the date of birth as recorded in the service book or other similar official document maintained by the concerned government shall be accepted by the Central Government, as the date of birth of such person.
(4) The date of birth as accepted by the Central Government shall not be subject to any alteration except where it is established that a bona fide clerical mistake has been committed in accepting the date of birth under sub-rule (2) or (3). In view of provisions contained in rule 16-A (1), the date of superannuation of a member of the Service is calculated with reference to the date of his birth as accepted by the Central Government. Admittedly, it is sub-rule (3) which would apply to the applicant, by virtue of which the date of birth as recorded in the service book or other similar official document maintained by the concerned Government, is accepted as the date of birth of such person. By virtue of sub-rule (4), the date of birth as accepted by the Central Government cannot be altered except where it is established that a bona fide clerical mistake has been committed in accepting the date of birth under sub-rule (2) or (3). Insofar as, thus the applicant is concerned, being covered under sub-rule (3), the date of birth which would be accepted by the Central Government would be the one recorded in the service book maintained by the concerned Government, in the present case, the State Government of Haryana. The facts emanating from the pleadings and the impugned order reveal that selection of State Civil Service officers for promotion to IAS is governed by the Regulations of 1955. In terms of third proviso to regulation 5(2) of the said Regulations, the selection committee is required to consider only those members of the State Civil Service who are substantive in the State Civil Service. There are other eligibility criterias also mentioned by the respondents. In order to ascertain that State Civil Service officers whose names are forwarded by the State Government to UPSC, fulfill the eligibility criteria, gradation list and eligibility-cum-seniority list of such officers are also provided by the State Government to UPSC. The gradation list/ eligibility-cum-seniority inter alia includes the information name, date of birth, date of initial appointment in the State Civil Service, etc. The selection committee duly reflects the date of birth of officers as mentioned in the gradation list/eligibility-cum-seniority list provided by the State Government, in the minutes of its meeting, and subsequently the select list is approved by UPSC after obtaining the views of Government of India and the State Government, as per provisions of regulation 7(3) of the said Regulations. Thereafter, the DOP&T notifies the select list and appointment of officers included in the select list of IAS. In the notification, the same date of birth of an officer is mentioned which has been mentioned in the minutes of the selection committee. The procedure as mentioned above, was applied in the case of the applicant as well, and the gradation list/seniority-cum-eligibility list prepared by the State Government contains the same date of birth as reflected in the minutes of the meeting of the selection committee and also in the notification issued by DOP&T. It is further the case of the respondents that it is not a question of acceptance of date of birth by the selection committee; it is rather a statement of fact provided by the State Government and duly entered by UPSC and DOP&T in their relevant records; and that DOP&T and UPSC have no other source to verify the veracity of the date of birth of an officer included in the select list, but to rely on the documents provided by the concerned State Government, which is the custodian of records pertaining to SCS officers.
11. From the records of the case and, in particular, the impugned order, what transpires is that the applicant represented to the State Government for the first time for change of his date of birth on 22.5.1993, i.e., about two months after the meeting of the selection committee held on 30.3.1993 for preparation of list of such members of SCS as were suitable for promotion to the IAS. The State Government on 8.6.1993 sent the proposal to the Central Government regarding promotion/appointment of the applicant to the IAS in accordance with regulation 9 of the Regulations of 1955, in view of his inclusion in the select list prepared by the selection committee, and thereafter approved by UPSC on 14.5.1993. In the proposal, the State government mentioned the date of birth of the applicant as 6.5.1948. The State Governments approval was enclosed with the requisite information in that behalf in the prescribed proforma III. Proforma III was filled by the applicant, and against the column date of birth he mentioned his date of birth as 6.5.1948 with bracketed remark that representation regarding correction of his date of birth was pending with the State Government. The representation of the applicant with regard to change of date of birth to the State Government was not made before the meeting of the selection committee held on 30.3.1993. He was unable to get his date of birth changed as long as he was an employee of the State Government.
12. From the averments made in the counter reply and the factual background of the case given in the impugned order, what thus transpires is that the State Government while recommending the case of the applicant had mentioned his date of birth as 6.5.1948, which was accepted in the manner as indicated above. It is no doubt true that insofar as, the applicant is concerned, he had made a mention in the bracket with regard to his date of birth as 6.5.1952, but in the other proforma which was sent by the State Government, there is no mention of any representation pending, and as mentioned above, the date of birth has been mentioned as 6.5.1948. The Central Government, in the circumstances as mentioned above, would only accept such date of birth of the applicant which was sent by the State Government. The applicant has himself annexed with the Application the proforma sent by the State Government. In proforma-II sent by the State Government, the date of birth of the applicant is recorded as 6.5.1948. In proforma-III which is filled in by the applicant, of course, against the column Date of Birth what is mentioned is 6.5.1948 (Representation reg. correction of date of birth is pending with State Govt.). The Central Government, as per provisions of rules reproduced above, was to go by, insofar as the date of birth is concerned, with the information received from the State Government and not from the applicant. During the course of hearing, in peculiar facts and circumstances of this case, when the applicant had made a mention of pendency of his representation regarding correction of his date of birth, a question arose as to whether the date of birth of the applicant as sent by the State Government while admitting him to the IAS, has been accepted by specific orders or is deemed to have been accepted. On 13.5.2009, we passed an order relevant part of which is reproduced below:
2. Concededly, it is sub-rule (3) of Rule 16-A, which is applicable in the facts of present case. It is urged by learned counsel defending the respondents that once the date of birth is accepted by the Central Government, the change in the same can be brought about only on one condition i.e. banafide clerical mistake, and that once the date of birth of the applicant has been accepted by the Central Government as 06.05.1948 as borne out from the service record and proceedings of UPSC, there is no scope to change the same.
3. Surely, the recorded and accepted date of birth did not make any bonafide clerical mistake. With a view to determine the question raised by counsel for the respondents, we would like to know as to when the date of birth of the applicant, as given in the service record, was accepted by the Central Government. Counsel, on instructions, informs us that no specific orders for acceptance of the date of birth of the applicant as recorded in the service records, proposal submitted by the State Government and the proceedings of Selection Committee i.e. UPSC, have been passed and the same is deemed to have been accepted.
4. The facts in the present case would demonstrate that at a time when the State Government forwarded the case of the applicant to the Central Government for his being admitted to IAS, the applicant had clearly mentioned that even though his actual date of birth is 06.05.1948 but in the bracket it has been mentioned that representation regarding correction of his date of birth is pending with the State.
5. In the peculiar facts and circumstances of the case, we would like the respondents to file an affidavit as to whether, as per procedure adopted by them, the date of birth of the applicant has been accepted by specific orders/proceedings or is deemed to have been accepted. They would also state whether it is in the case of applicant only it was deemed to be accepted or it is so considered with regard to all concerned under Rule 16-A (3).
6. Let the needful be done before the next date of hearing with an advance copy to the counsel opposite.
7. List the matter on 22.05.2009 at 10.30 a.m. On the adjourned date of hearing, Shri T. C. Gupta who was assisting the arguing counsel only appeared, and on instructions stated that the Government did not want to file additional affidavit. When the counsel stated so, we passed an order on that date, relevant part whereof reads as follows:
4. When this matter was first called for hearing, Mr. T. C. Gupta, who assisted earlier the arguing counsel Sh. S. K. Dubey, stated that a person dealing with the matter is on his way and requested that the information shall be given to the Tribunal on his arrival and, therefore, the matter was passed over. However, after transacting some other cases when this case was again taken up, Mr. Gupta stated that he has information that dealing person is unable to come to the Tribunal but he, on instructions, has to state that Government does not want to file any additional affidavit. Mr. Gupta does not appear to have understood our order dated 13.05.2009 in its correct perspective. The requirement of filing additional affidavit was on the plea raised by none other than the respondents and even though it may have been mentioned that we would like the respondents to file an affidavit, the same was virtually direction to do so. If the respondents have not understood the order dated 13.05.2009, as mentioned above, in its right perspective, let them understand it now, and even after understanding, if no additional affidavit is filed, the Tribunal would hear arguments as to whether filing of an affidavit needs to be insisted upon or is required and if the respondents are not prepared to file the same, whether records should be summoned or adverse presumption may be drawn. We do not comment on any of these scores at this stage. This matter would, however, be examined and determined after hearing learned counsel appearing for the parties. We only put them on notice that these may be the questions that arise. Since the matter is lingering on far beyond it should have been, we make it clear that no further opportunity to file additional affidavit shall be given to the respondents unless they have very strong case on that count. The matter, as mentioned above, is part heard and we are sanguine that the parties would conclude the arguments by the next date of hearing.
List the matter again for hearing on 24.07.2009. Process DASTI. One day before the date fixed, counsel for the respondents, however, made an oral prayer for permitting the respondent Government of India to file additional affidavit in tune with the order dated 13.5.2009. The same was permitted and has indeed been placed on records, with advance copy to the learned counsel representing the applicant. It has inter alia been pleaded in the affidavit aforesaid that the date of birth of the applicant is mentioned as 6.5.1948 in the minutes of the selection committee for preparation of a list of SCS members, for promotion to the IAS. The said minutes were signed by the Chief Secretary, Haryana and three other officers of the Government as members of the committee. It is pleaded that on the date of the selection committee meeting, which is the date relevant for acceptance of date of birth of an SCS/non SCS officer, no representation of the applicant was pending with the Government, and even on the date of approval of the recommendation of the selection committee by UPSC on 14.5.1993, no application for change of date of birth was pending. It is then pleaded that no specific orders for acceptance of date of birth are separately passed by the answering respondent, and as per procedure, date of birth recorded in the proceedings of the selection committee meeting held on 30.3.1993 and duly approved by UPSC on 14.5.1993 is the date of birth that is deemed to have been accepted by the respondent as per provisions of rule 16-A(3) of the Rules of 1958. What thus clearly emerges from the additional affidavit filed on behalf of the respondent is that the date of birth as sent by the State Government and approved by the selection committee and UPSC is deemed to be accepted and no separate orders on that count are passed.
13. Narration of facts as given above would demonstrate that the correct procedure as envisaged under rule 16-A of the Rules of 1958 in accepting the date of birth was adopted, and further that while doing so, no bona fide clerical mistake had been committed in accepting the date of birth. Shri Behera, learned counsel representing the applicant, would still urge that the decision of the Government now impugned is in defiance of the order passed by a single Bench of this Tribunal in the first OA No.2207/2007 of the applicant, and that the respondents despite clear findings recorded in the said order, have chosen to take their own decision, as if they were sitting in appeal over the said order. The argument appears to be impressive on the first blush, but when examined in all its fine and minute details, would not have any substance. We may also mention that the only other contention of the learned counsel for the applicant is that the impugned order now passed by the respondents is in sharp contrast to the judicial precedent of the Honble Supreme Court in S. Janardhana Rao v Government of A.P. & Another [1999 SCC (L&S) 653]. We do not find any merit in this contention as well. We may give our reasons.
14. The learned single Bench of this Tribunal while dealing with the first OA of the applicant bearing OA No.2207/2007 indeed made some observations, which would appear to be supporting the plea of the applicant even on applicability of rule 16-A of the Rules of 1958. We may make a mention of the same. Paragraphs 12, 14, 15 and 17 are reproduced below for facility of reference. We may, however, mention at this very stage that despite the observations as may be mentioned below, the ultimate direction was to re-examine the matter in the context of the observations made and in the light of the decision of the Apex Court in S. Janardhana Rao (supra). We may also reproduce the ultimate directions that came to be issued, contained in paragraph 18:
12. Having regard to the above, the Central Government when accepts the date of birth has no jurisdiction or authority to determine the date of birth. In the instant case the facts are slightly different, as in Rama Swamy (supra) the respondent was a direct recruit to the IAS, whereas in the present case applicant was appointed from State Civil Service under the IAS (Appointment by Promotion) Regulations and was erstwhile officer of the State Civil Service. During his service in the State though his prayer for alteration of date of birth was not acceded to but once there has been a correction in the date of birth in his educational certificate, a representation was pending when the turn of applicant to be promoted under the IAS had come. However, the declaration made by the applicant was not absolute as to the date of birth and was conditional, whereby an acknowledgement has been made as to pendency of a request for alteration in the date of birth with the State Government. Accordingly, in the circumstances preceded the appointment of applicant in IAS by a proposal sent by the State Government to the Central Government, acceding to the request of applicant for date of birth with an irrefutable proof from 6.5.1948 to 6.5.1952, the definiteness in the date of birth was determined only on the basis of the proposal. However, the Central Government before such representation and result thereof was communicated to it, with undue haste, treated as accepted the date of birth without paying any heed to the rider placed in the proforma. 14. Having regard to the above, being of a larger Bench the aforesaid decision shall prevail over the decision in Rama Swamys case (supra), where it is ruled that acceptance would not include determination. Accordingly, when the date of birth was not determined and was not final, it should not have been accepted by the Government, without awaiting the disposal of the representation of applicant for alteration of date of birth, pending with the State Government. The facts and the ratio laid down on all fours cover the present issue. The State Governments proposal when not considered, the date of birth has been directed to be corrected. 15. Insofar as bonafide clerical error is concerned, in fact the aforesaid condition would precede acceptance by the Government of the date of birth. Once the date of birth alleged declared by the applicant was not a final date of birth and was subjected to correction. It is only the date of birth which, after correction has to be accepted as the date of birth. 17. It is trite that when a thing is to be done in a particular manner by an administrative authority being creature of statute, no other manner has to be adopted. The discretion vested under the rules has to be exercised judiciously, as held by the Apex Court in Union of India v. Kuldeep Singh, 2004 (2) SCC 590. Resultantly, the rules and the embargo therein shall not apply in the present case. As there was no valid acceptance and the date of birth declared was not final, rejection of the request of the applicant for alteration of date of birth cannot be sustained in law. 18. In the result, for the foregoing reasons, OA is partly allowed. Impugned order is set aside. The matter is remitted back to respondent No.1 to be re-examined in the context of the observations made above and in the light of the decision of the Apex Court in S. Janardhana Rao (supra) and a final decision shall be taken in the wake of retirement of superannuation of applicant approaching on 31.5.2008, within a period of three weeks from the date of receipt of a copy of this order, by passing a reasoned order. No costs. The pertinent findings culled out from the paragraphs reproduced above are that acceptance would not include determination, and insofar as, bona fide clerical error is concerned, the said condition would precede acceptance by the Government of the date of birth, and it is only the date of birth after correction which has to be accepted as the date of birth. It is because of the findings aforesaid that it has been further mentioned that the rules and the embargo therein shall not apply in the present case. If one is to strictly go by the observations as above, Shri Behera would be right in his contention that a finding on the crucial issue has since already been given by the learned single Bench of this Tribunal and, therefore, the order now passed dated 27.5.2008 would be in defiance of the said order.
15. Having given our thoughtful consideration to the whole issue, we are of the view that once, the case is remitted for reconsideration even though, in the light of the observations made in the order, the findings on the crucial issue cannot be taken as final; they have to be termed as tentative, as surely if the said findings were final, there would have been no need at all to remit the matter to the Government for reconsideration, as surely, on such findings, the order impugned in the OA had to be set aside with the direction to bring about a change in the official records pertaining to date of birth of the applicant and to correct it from 6.5.1948 to 6.5.1952. We had an occasion to deal with a similar point in OA No.290/2007 decided on 15.2.2008 in the matter of Sharat Kohli v Chief Secretary, Government of NCT of Delhi & others, which came up before a Division Bench after the law point was determined by a Full Bench of the Tribunal. The matter pertained to out of turn promotion, and the case as set up by the applicant therein was that he had been discriminated in the matter of out of turn promotion, as persons similarly situated and having played the same role, which was termed as brave act, were given out of turn promotion, whereas he was not given the said benefit. Before we determined the matter vide order dated 15.2.2008, the applicant had also earlier come to this Tribunal seeking the same relief, wherein the findings on merits were recorded with regard to similarity of the role of the applicant vis-`-vis those who had been given out of turn promotion, even though the matter was remitted to the concerned authorities for reconsideration. On re-consideration, the authorities still found no case in favour of the applicant for grant of out of turn promotion. In the circumstances, it was urged by the counsel for the applicant that a coordinate Bench of the Tribunal in an inter-partes order had already held, on comparison of the role played by the applicant with that of his colleagues in the incident, to be same or similar and that it was a case of discrimination as different treatment had been meted out to the applicant than that of his colleagues. We dealt with the said argument by observing that At the very outset, we may mention that if findings recorded by this Tribunal in OA No.677/2006 are to be conclusive and not tentative and we were to differ with the same, we would have again referred the matter to the Full Bench but on reading of the entire order we are of the firm view that the findings recorded by this Tribunal in OA No.677/2006 are not conclusive and are rather prima facie or tentative in nature. After referring to the observations made by the coordinate Bench in the earlier OA of the applicant, we proceeded to observe as follows:
Despite that, in paragraph 10 of the order, the impugned order was set aside being non-speaking one rejecting the representation of the applicant and it was further observed that plethora of reasons given in the reply would not supplement it. In the ultimate para, it was held that it was a case of non-application of mind in consideration of the case of the applicant for out of turn promotion. The matter was remitted to the respondents to re-consider the case of the applicant for out of turn promotion within a period of two months from the date of receipt of copy of that order. Even though, it may appear, at the first blush, that a finding came to be recorded that it was the case of discrimination as the role played by the applicant was at par with his colleagues who got out of turn promotion, the same, in our view, cannot be termed as conclusive finding. The order, as mentioned above, was set aside on the ground that the order rejecting the representation of the applicant was non-speaking and variety of grounds raised in the counter reply would not cure the same. Further, if the findings were to be conclusive, there was no occasion to remit the matter to the authorities to re-consider the same. Once, it was to be found by the Tribunal that it was indeed a case of invidious discrimination, the role played by the applicant being at par with his colleagues who got out of turn promotion, a direction could well be issued to accord out of turn promotion to the applicant. That apart, if the exercise of comparing the role of the applicant with that of his colleagues was conclusively gone into by the Tribunal, there would have been no need to direct the authorities to do the same exercise again. Even though, therefore, finding with regard to discrimination and the role played by the applicant being at par with his colleagues have been given but the same have to be termed as tentative and not conclusive We are of the considered view that once the matter is remitted for re-consideration by the authorities even though, in the light of observations that may have been made, the said observations have to be termed as tentative and not conclusive. We repeat and reiterate that if the Honble Member had given a conclusive finding, there was no need whatsoever to remit the matter to the authorities concerned. We may also mention that despite the findings given by the Honble Member (J), as relied upon by Shri Behera, when this matter was heard by the Bench presided over by the same Honble Member on 4.12.2008, the matter was ordered to be listed before another Bench in which the Honble presiding Member was not to be a Member, as while sitting single, he had himself taken a different view in Surjit Kaur Sandhu v Union of India & others (OA No.573/2008 decided on 2.4.2008). In the said case even though, it was a case of direct recruitment to IAS and not induction into IAS by promotion, while interpreting rule 16-A it has been held that what would be a bona fide error is an error committed by the respondents officers in recording the declared date of birth by an officer of the civil service but not an error in the matriculation certificate. .Yet it is the date of birth which figured in the certificate appended with the proforma as a proof of date of birth which shall be the only document and material on which the date of birth is to be accepted by the government. Admittedly in the instant case in 1978, when the applicant was inducted into civil service the matriculation certificate shows her date of birth as 25.3.1948 and once accepted, I do not find any bonafide clerical mistake within the meaning of Rule 16-A (4) of the Rules ibid on which a subsequent correction of date of birth in matriculation certificate and alteration is required.
16. We may now make a mention of the view taken by the authorities pursuant to the directions issued by the learned single Bench in the earlier OA of the applicant. The order, as mentioned above, is detailed making a mention of every aspect of the case factual and legal. In paragraphs 3 to 5, the facts and background of the case have been given. Mention then from para 6 is with regard to the observations made by the Tribunal in the first OA of the applicant. In paragraphs 10 and 11, reference is to some other judgments of the Honble Supreme Court and this Tribunal, and to some recent judicial precedents. Para 12 re-examines the matter in the light of directions of the Tribunal. In para 14 it has been observed that in case of appointment by promotion/selection, the source of information regarding the date of birth of an officer is the date mentioned in the minutes of the selection committee, which prepares the select list for induction of such officers to the IAS, and the date of birth mentioned in the minutes is based on the records furnished by the State Government at the relevant point of time. It is further observed that in the concerned minutes of the meeting held on 30.3.1993 of the selection committee for preparation of a list of such members of State Civil Service of Haryana as were suitable for promotion to the IAS, the date of birth of the applicant was mentioned as 6.5.1948. Mention is then of the representation made by the applicant to the State Government for the first time on 22.5.1993, which was after about two months after the meeting of the selection committee held on 30.3.1993, wherein the applicant was also considered and recommended along with some other officers of the State Civil Service. The State Government on 8.6.1993 sent the proposal to the Central government regarding promotion/appointment of the applicant to the IAS according to regulation 9 of the Regulations of 1955, in view of his inclusion in the select list recommended by the selection committee and approved by UPSC on 14.5.1993. In the proposal, the State Government mentioned the date of birth of the applicant as 6.5.1948. The State Governments proposal was enclosed with requisite information in that behalf in the prescribed proformas. In the proforma filled by the applicant, against the column date of birth, he mentioned his date of birth as 6.5.1948 with bracketed remark that representation regarding correction of date of birth was pending with the State Government. It is mentioned that the applicant did not represent to the State Government before the aforesaid meeting of the selection committee despite being in State Civil Service since 1976 and did not get the matter disposed of when the State Government was the competent authority, and that the said representation which was subsequent to the selection committee meeting, could not be said to be pending with the Government on the date relevant for acceptance of date of birth. We do not find any error in the observations/findings recorded in the impugned order. As per rule position, it is only that date of birth of an officer belonging to the category of the applicant, which is to be accepted, as mentioned by the State Government. The State Government in the proformas sent to the Central Government for induction of the applicant into IAS, mentioned his incorrect date of birth, i.e., 6.5.1948. It is the applicant only who had mentioned in the proforma filled in by him that his representation with regard to change of date of birth was pending. The source of information with regard to date of birth had to be from the State Government, and the same was mentioned as 6.5.1948, and it was the date which could be accepted. We may only reiterate that there is no specific order with regard to acceptance of date of birth passed in the case of any officer. The date of birth is deemed to be recorded and accepted which may be sent by the State Government.
17. Insofar as, the judgment of the Honble Supreme Court in S. Janardhana Rao (supra) is concerned, the facts of the said case reveal that the date of birth of the appellant as recorded in his service record was 12.9.1936. Inasmuch as, the same was, according to the appellant, wrongly recorded, he made a representation to the State Government seeking correction therein in 1972. The said representation was considered by the State Government and it ultimately came to the conclusion that his correct date of birth should be 6.7.1939. The correction in the date of birth of the appellant came to be made on 15.11.1982. similar corrections were also made by certain other authorities to which the appellant represented. His service book was also similarly corrected and his date of superannuation was shown to be July, 1997. It is thereafter that a proposal was submitted by the State Government for his appointment to IAS. Unfortunately, the State Government while forwarding the proposal, committed an error in mentioning his date of birth as the old one instead of the revised date of birth. The State Government issued notice dated 20.7.1993 seeking to retire the appellant on the basis of the original date of birth. It is in the circumstances as mentioned above that the appellant approached the Tribunal, without, however, with any success. In the appeal preferred against the order of the Tribunal, the Honble Supreme court observed that the date of birth of the appellant was incorrect and after enquiry, consequential government orders were issued directing the correction of the birth date in the relevant records including his service book, and the birth date was so corrected, and, therefore, merely because the State Government committed an error while forwarding the proposal to the Central Government in regard to the birth date, it was not correct to say that in view of rule 16-A of the Rules of m1958, he was not entitled to the benefit or the correct birth date. Rule 16-A(3), it was further observed, provides that the date of birth recorded in the service book shall be accepted by the Central government as the birth date of the civil servant concerned for determining the age of superannuation, and once the date of birth was corrected in the service record, including service book, and the State Government had informed the Central Government that it had committed an error in mentioning the same while forwarding the proposal, the Central government should have taken note thereof and if it had any doubt about it, should have enquired into the matter as to its corrections, but could not have brushed aside the same. The facts of the case in hand, in our view, have no parity with the facts of the case before the Honble Supreme Court in S. Janardhana Rao (supra). In the present case, the representation of the applicant was pending at the relevant time and the State Government, at the most, made recommendation in favour of the applicant for change of his date of birth to the Central Government in 2007. By that time, the date of birth sent by the State Government had been accepted and the change therein could be brought about only if there was a bona fide clerical mistake.
18. In view of the findings as above, there may not be any need to further deal with other issues. However, since an objection with regard to delayed action on the part of the applicant has been raised, it would be appropriate to deal with the same as well. In the very first instance, we may mention that the plea has been raised only during the course of arguments. At no stage, the Central Government thought it expedient to reject the case of the applicant on the basis of delay. Neither in the first order dated 9.10.2007 rejecting the representation of the applicant, nor in the order impugned now in the present OA, there is any mention with regard to delay, and that for that reason, the applicant is not entitled to any relief. In all fairness, we may mention that in the impugned order dated 27.5.2008, while giving narration of facts, it has been mentioned that representation of the applicant dated nil addressed to the State Government was received by the Central Government with the State Governments letter dated 26.6.2007, after a considerable period of time, i.e., about ten years since his last application had been rejected in 1997. However, this observation is not the cause of rejection of the case of the applicant. In the reply filed on behalf of the 1st respondent, there is no plea with regard to the applicant acting late in the matter of correction of his date of birth. Even though, a plea which may arise from the admitted or true facts, can be raised at any stage, but then the affected party has to be given a chance to explain the plea that may be so raised. Coming to the facts of the present case, it is not a case where the applicant hit upon an idea to get a change in his date of birth close to his retirement. It may be recalled that it is the case of the applicant that as soon as he came to know about the discrepancy in his date of birth so recorded in his matriculation certificate, he moved the Punjab University for correction of his date of birth in the matriculation certificate, and decision was taken in the Syndicate proceedings held on 20.1.1997 to rectify the mistake. Even prior thereto, the applicant had made representation 28.5.1993 to the Chief Secretary, Haryana for rectification in his date of birth, which was, however, rejected vide letter dated 12.7.1993. By that time, surely, the Punjab University had not rectified the date of birth in his matriculation certificate. It was done in 1997. The applicant thus moved yet another representation which too was dismissed on 1.7.1997. It may also be recalled that both the representations primarily came to be rejected on the ground that the applicant had taken advantage of his wrong date of birth inasmuch as, if his correct date of birth was to be mentioned, he would not have been able to get the government job at the time when he was appointed as Assistant Registrar, Cooperative Society. Shri Behera, learned counsel representing the applicant, states that there has indeed been delay of ten years in making the third representation in which the State Government came to a definite conclusion on the basis of irrefutable evidence that the applicant was actually born on 6.5.1952 and not on 6.5.1948, but then, had the plea with regard to delay been taken at any stage, the applicant would have explained that he was not aware of the difference in rules applicable when he came to be appointed and the rules on the basis of which it was said that the applicant had taken advantage of his wrong date of birth in securing government employment. He urged that the moment he came to know that there was a marked difference between the two sets of rules referred to above, he made a representation for correction of his date of birth. The applicant is not in the kind of service that he may naturally and in the course of his duties know the rule position, and he made the third representation when after great deal of efforts he was able to trace the rules and find out the difference. It was urged that the applicant had been persistently and tenaciously pursuing his cause and there was a ring of truth in his plea that his date of birth as 6.5.1948 was wrong. Insofar as, the delayed action on the part of the applicant in approaching the Tribunal is concerned, the same has to be straightway rejected. There was no occasion for the applicant to agitate the matter when his first two representations were rejected, as there was no question for him to succeed inasmuch as, the finding recorded in rejecting his representations that he had taken advantage of his wrong date of birth in securing government employment, could not have been set at naught, and any action by the applicant at that stage would have been an exercise in futility. It is only in 2007 when despite recommendations made by the State Government his representation was rejected, that he immediately filed OA No.2207/2007 in this Tribunal, and eversince then he has been pursuing his case. Insofar as, delay in the applicant reacting to get his date of birth changed is concerned, even though, we may find that he moved in the matter quite some time after he was initially appointed in the State Government service, but the same, in any case, was far before his date of retirement, i.e., 15 years. He moved his representation immediately when he was to be inducted into IAS. It is in the year 1993 that he was inducted into IAS, and it is about the same time that he started moving one authority or the other for correction of his date of birth. Present is not a case perhaps which can be rejected on the applicant moving in the matter of correction of his date of birth at a late stage.
19. With the findings and observations as mentioned above, this application would ordinarily result into its dismissal. However, considering the totality of facts and circumstances of this case, we are of the view that a limited direction still requires to be issued. We have already returned a firm finding that the actual date of birth of the applicant is 6.5.1952 and not 6.5.1948 based upon irrefutable and/or unimpeachable evidence. We are in agreement with the counsel representing the applicant that this may be one of the rarest of rare cases wherein the date of birth of the applicant recorded in the original matriculation certificate and in the service record is incorrect. The applicant has yet failed in his endeavour to get it corrected on the dint of provisions contained in Rule 16-A of the Rules of 1958, which would permit no change in date of birth unless it is because of bona fide clerical mistake. The State Government while recommending correction in the date of birth of the applicant traced out the factual position, accepting the plea raised by the applicant that he had not taken advantage of his wrong date of birth for securing government employment, thus virtually admitting that rejection of the earlier two representations was incorrect. In the recommendation aforesaid, it was observed that his earlier representation was rejected on wrong premise and that he had not taken any advantage of his wrong date of birth i.e. 6.5.1948 as he was otherwise also eligible for appointment as Assistant Registrar, cooperative Societies, had his date of birth been 6.5.1952. While arriving at the conclusion that the correct date of birth of the applicant was 6.5.1952, reference was made to middle standard school examination certificate issued by Education Department, Haryana, the correction made by the Punjab University in the matriculation certificate of the applicant, and the birth certificates of other brothers and sisters issued by Registrar, Births & Deaths. It also relied upon observations of the Honble Supreme Court that it would be 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. In order to do justice to the applicant, the State Government also relied upon observations of the Honble Supreme Court in M/s Hindustan Sugar Mills v State of Rajasthan [AIR 1981 SC 1681] that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizen by adopting legalistic attitude but should do what fairness and justice demand. It also observed that the applicant had submitted irrefutable evidence of his actual date of birth being 6.5.1952 instead of 6.5.1948. In the circumstances as mentioned above, a question arises as to whether the rigor of rule 16-A of the Rules of 1958 can be relaxed, for which power is vested with the Government by virtue of rule 3 of the All India Services (Conditions of Service Residuary Matters) Rules, 1960 (hereinafter to be referred as the Rules of 1960), which reads as follows:
3. Power to relax rules and regulations in certain cases. Where the Central Government is satisfied that the operation of any rule made or deemed to have been made under the All India Services Act, 1951 (61 of 1951), or any regulation made under any such rule, regulating the conditions of service of persons appointed on an All India Service causes undue hardship in any particular case, it may, by order, dispense with or relax the requirements of that rule or regulation, as the case may be, to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. With regard to applicability of rule 3 of the Rules of 1960, there are arguments for and against based on facts and judicial precedents. We are not deciding this controversy at this stage, but we may only mention that one of the judgments relied upon by the counsel representing the respondents is the same judgment of the Honble Member (J) in Surjit Kaur Sandhu (supra). It would be up to the Government to consider the issue and while doing so, it may consider the judicial precedents including Surjit Kaur Sandhu (supra). We may, however, mention that the learned single Member while rejecting the plea of the counsel for the applicant based upon Rule 16-A, on facts, however, insofar as the Government declining to give benefit of rule 3 of the All India Services (Conditions of Service Residuary Matters) Rules, 1960, is concerned, observed that present is not open and shut case. Right at the inception from school leaving certificate issued on 31.3.1959 and the matriculation certificate in 1964 which was made basis by the applicant in applying not only for a senior school examination but graduation as well without any demur accepted this date of birth and relied on it while filling up the application form for CSE. Thereafter when the applicant was posted in Punjab on deputation the entire gamut upto issue of a decree was managed. An application though purportedly sent to the Punjab University in 1976 without any proof on record for correction of date of birth was abandoned and resumed only by a request made to the Vice Chancellor Punjab University only on 7.1.1999. Syndicate approved the change of date of birth. However in the wake of rejection by the University a Suit filed before the civil judge in collusion with Punjab University and Government girls high school has gone to the extent of proceeding Punjab University ex-parte. If the date of birth of an incumbent of Indian administration service is sought to be corrected in the matriculation certificate it was the duty of the applicant as the minimum requirement to apprise either the State of UP or Union of India of it and also impleadment of the authorities as necessary parties. In that event, the truthfulness of the claim of applicant would have not required any proof and a decree passed thereupon should have been binding on the State. The observations made above would demonstrate that the plea of the applicant in the said case that her date of birth was incorrectly recorded was repelled. In fact, a firm finding of fact came to be recorded that the applicant had managed the affairs.
20. As observed above, we would, however, not go into that exercise, as surely, while rejecting the representation of the applicant on two occasions, it appears, the Government had not applied its mind to the provisions of rule 3 ibid. Since it is in exclusive discretion of the Government to relax the operation of any rule, of course depending upon the parameters contained in the rule itself, or the Government instructions that may have been passed from time to time, it would be more in the fitness of things that the Government may apply its mind on the said issue. The only direction that would thus be given in the present case is that the Central Government would apply its mind to the applicability of rule 3 of the Rules of 1960 in the context of the facts and circumstances of this case. We only observe that by irrefutable, unimpeachable and unrebutted evidence, the State Government came to observe that the date of birth of the applicant is 6.5.1952 and not 6.5.1948, which came to be unfortunately wrongly recorded. Rest of the parameters for applicability of rule 3 would naturally be in the discretion and domain of the Central Government. We are, however, sanguine that while considering the applicability of rule 3, the stark fact that the present is indeed one of the rarest of rare cases where the employee has proved to the hilt that the wrongly date of birth needs correction, shall be taken into consideration. The Government would take its decision within three weeks from today. In the interregnum, it would be in the discretion of the Government to continue or not to continue the applicant in service. We only observe that if in the exercise as ordained, the Government may be of the view that the facts and circumstances of the case do entail change in the date of birth of the applicant, then this period of three weeks would not be treated as interruption in the service of the applicant and he may be given leave of the kind due, as may be permissible under rules.
21. Present Application is allowed to the limited extent as mentioned above. In view of the serious contest between the parties and there being really moot points involved in the case, the costs of this litigation are made easy.
22. Before we may part with this order, we may mention that a misc. application bearing MA No.60/2009 came to be filed during the course of pendency of this Application, seeking impleadment of the applicant therein as party respondent, to which Shri Behera took objection. However, the counsel representing the applicant in the said misc. application stated that let the applicant be not impleaded as party respondent, but she may be heard in the matter. The counsel was permitted to address arguments. No one has, however, appeared on behalf of the applicant in the said misc. application.
( Dr. Veena Chhotray ) ( V. K. Bali )
Member (A) Chairman
/as/
I had discussed this matter after conclusion of arguments with Dr. Veena Chhotray, Honble Member (A) constituting the Bench, and after discussion, we had formed an opinion as to what would be the result of this case. On preparation of the judgment, however, Dr. Veena Chhotray, Member (A) has gone on leave for a period of one week and is likely to join back on August 10, 2009. I have discussed the matter on telephone once again with the Honble Member, and she has concurred. Her signatures on the judgment would, however, be obtained immediately when she may come back.
( V. K. Bali ) Chairman