Punjab-Haryana High Court
Naresh Kumar Goel vs State Of Punjab And Others on 25 March, 2013
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 19610 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 19610 of 2011
Date of Decision: March 26, 2013
Naresh Kumar Goel
.....PETITIONER
VERSUS
State of Punjab and others
.....RESPONDENTS
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
PRESENT:Mr. Ashwani Kumar Chopra, Sr. Advocate,
With Mr. N.D.Kalra, Advocate,
for the petitioner.
Ms. Monica Chhibbar Sharma, DAG, Punjab,
for the respondents.
AUGUSTINE GEORGE MASIH, J.
Petitioner was appointed as an Inspector in the department of Cooperative Societies, Punjab on 05.12.1981. His date of birth is entered as 16.04.1957 based upon his matriculation certificate whereas the actual date of birth of the petitioner is November 14, 1957. State of Punjab, Department of Finance (Finance Personnel-II Branch) Chandigarh issued a notification No. CWP No. 19610 of 2011 2 11/4/93-II FP/4499 dated 21.06.1994 in exercise of powers under Article 309-B of the Constitution of India amending the Punjab Civil Services Rules Volume I, Part I to the effect that the employees already in service on the date of coming into force of the said rules, might apply for change of date of birth within a period of two years from the coming into force of the said Rules on the basis of a confirmatory documentary evidence such as birth certificate issued by the Registrar, Births and Deaths, and in the absence of such a certificate, an attested copy of matriculation certificate or an affidavit in proof of the correctness of the date of birth.
Since the date of birth of the petitioner was not correctly recorded, he submitted a representation dated 08.02.1996, which was well within two years as stipulated in the notification dated 21.06.1994 for correction of his date of birth as 14.11.1957 instead of 16.04.1957 on the basis of the birth certificate issued by the Municipal Council, Budhlada. The case of the petitioner was duly considered but the same was returned by the Registrar, Cooperative Societies, Punjab in original vide letter dated 03.05.1996 on the ground that the State of Punjab has withdrawn the notification dated 21.06.1994 vide letter dated 13.12.1995 in toto. A circular was then issued on 07.10.1996 (Annexure P-3), to which no requisite publicity was given and it was mentioned that the applications received during the period of issuance of notification dated 21.06.1994 till the withdrawal of the same shall be considered by the department and disposed of on merits.
CWP No. 19610 of 2011 3
Petitioner submitted a representation to the Registrar, Cooperative Societies-respondent No. 2 again on 06.06.2008 for re- consideration of his claim for correction in date of birth as the notification dated 21.06.1994 had never been withdrawn vide circular dated 13.12.1995 but it was only withdrawal of the circular dated 10.05.1995. The claim of the petitioner was duly considered by respondent No. 2 and after verification about the correctness of the date of birth of the petitioner and the certificate issued to him, the claim of the petitioner was sent to respondent No. 1 vide letter dated 14.09.2009. Some objections were raised by the Government, which were removed and the case was re-sent to respondent No. 1 on 03.11.2009. On June 23, 2010, the Government again raised some queries. A query was also put to respondent No. 2 as to whether the case of the petitioner was earlier considered or not and if not, then the liability of the officers/officials be fixed and recommended.
To escape its liability, the Registrar, Cooperative Societies-respondent No. 2 took a total contrary stand and vide letter dated 27.07.2010 informed the Government that the delay was on the part of the petitioner and recommended that the representation of the petitioner be rejected. Despite various representations submitted by the petitioner and even service of the legal notice dated 14.02.2011 upon respondents No. 1 and 2 when no action was taken, he approached this Court by filing CWP No. 7594 of 2011, which was disposed of by this Court vide order dated 02.05.2011 CWP No. 19610 of 2011 4 directing respondents to decide the legal notice of the petitioner within a period of three months from the date of receipt of certified copy of the order. Thereafter, respondent No. 2 passed an order dated 11.08.2011 (Annexure P-12) rejecting the claim of the petitioner stating therein that the request of the petitioner cannot be accepted as the notification dated 21.06.1994 which permitted employees to apply for correction of date of birth within a period of two years stood withdrawn vide instructions dated 13.12.1995. Since the petitioner had submitted a representation for correction of his date of birth on 08.02.1996, which is subsequent to the date of 13.12.1995 when the instructions dated 21.06.1994 stood withdrawn, the claim of the petitioner cannot be accepted. Petitioner has thus, approached this Court by filing the present writ petition.
Counsel for the petitioner contends that the stand of the respondents in rejecting the claim of the petitioner is not sustainable on facts as the notification dated 21.06.1994 and the circular dated 07.10.1996 have never been withdrawn by the respondents and, therefore, the impugned order cannot sustain. He submits that the notification dated 21.06.1994, which is issued in exercise of Article 309 of the Constitution of India, amended the statutory Rules granting liberty to the employees to get their date of birth corrected within a period of two years from the date of the notification and the amended Rules. This notification could not have been withdrawn by executive instructions. His further contention is that none of the CWP No. 19610 of 2011 5 instructions issued subsequent to the issuance of the notification dated 21.06.1994 states that the notification dated 21.06.1994 (Annexure P-1) has been withdrawn. It is merely clarificatory or procedural instructions, which were issued subsequent to the issuance of the notification dated 21.06.1994, which have been withdrawn. The right of the petitioner flows from the notification dated 21.06.1994 which gave liberty to the petitioner to get his date of birth corrected within a period of two years and the petitioner, within the stipulated period, had applied for the change of date of birth vide representation dated 08.02.1996. It has accordingly been prayed that the impugned order deserves to be quashed and writ petition allowed.
Counsel for the respondents has reiterated the stand, as has been taken by respondent No. 2 in its impugned order dated 11.08.2011 (Annexure P-12).
I have considered the submissions made by the counsel for the parties and with their assistance, have gone through the records of the case.
For decision of this case, the notifications/instructions issued by the State of Punjab need to be gone into in seriatim so that the true position may come to light. The Government of Punjab took a decision to permit correction in date of birth of its employees, who were already in service and for that purpose, amendment in Annexure (A) to Chapter-II in the Punjab Civil Services Rules, CWP No. 19610 of 2011 6 Volume-I, Part-I has been made. According to this amendment, the employees already in service of the Government of Punjab on the date of coming into force of the Punjab Civil Services (First Amendment) Rules, Volume-I, Part-I, 1994, may apply for the change of date of birth within a period of two years from the coming into force of these rules on the basis of confirmatory documentary evidence such as Matriculation Certificate of Municipal Birth Certificate etc. No request for change of date of birth shall be entertained after the expiry of the said period of two years. Department of Finance (Finance Personnel-II Branch) issued notification dated 21.06.1994 (Annexure P-1). According to this notification, an employee could apply for correction of his date of birth up to 20.06.1996. Department of Finance (Finance Personnel-II Branch), vide instructions dated 18.01.1995 (Annexure P-13), clarified that the intention of the notification dated 21.06.1994 was that the affected employees, who had not approached the Government earlier for change of their date of birth, should be provided an opportunity and ample time to get the same corrected. An enquiry was mandated, where such a claim was made, to be conducted by the Commissioner for Inquiries. These two instructions are issued by the Department of Finance.
Thereafter, Department of Peronnel and Administrative Reforms (Personnel Policies-III Branch), vide instructions dated 10.05.1995 (Annexure P-14) in supersession of the instructions dated 18.01.1995 (Annexure P-13), proceeded to designate the CWP No. 19610 of 2011 7 Deputy Commissioner of the district, in which the birth place of the concerned employee falls, as an Enquiry Officer. The Department of Personnel and Administrative Reforms (Personnel Policies-III Branch) again issued a letter dated 05.10.1995 (Annexure P-15) suspending the instructions dated 10.05.1995 (Annexure P-14) with immediate effect. Copy of this letter was sent to the Department of Finance in continuation of the earlier letter dated 10.05.1995 (Annexure P-14) with a request that the instructions issued by the Department of Finance vide instructions dated 21.06.1994 (Annexure P-1) and the subsequent letter dated 18.01.1995 (Annexure P-13) be suspended at once.
After this, another letter dated 13.12.1995 (Annexure P-
16) was issued by the Department of Peronnel and Administrative Reforms (Personnel Policies-III Branch) withdrawing the instructions dated 10.05.1995 (Annexure P-14). Copy of this letter was also forwarded to the Department of Finance with the request that the notification dated 21.06.1994 (Annexure P-1) and subsequent instructions dated 18.01.1995 (Annexure P-13) be withdrawn. Another letter dated 07.10.1996 (Annexure P-17) was issued by the Department of Peronnel and Administrative Reforms (Personnel Policies-III Branch) with reference to the instructions dated 10.10.1995 vide which instructions dated 10.05.1995 (Annexure P-
14) regarding change of date of birth were suspended, which were withdrawn vide letter dated 13.12.1995 (Annexure P-16), in which it CWP No. 19610 of 2011 8 was directed that on re-consideration, it has been decided that all applications received during the period when the Punjab Government notification dated 21.06.1994 remained in force, may be disposed of on merits.
A perusal of the above would clearly indicate that the notification dated 21.06.1994 and the instructions dated 18.01.1995 were issued by the Department of Finance, Government of Punjab, which is the competent authority to amend the statutory Rules and in none of the instructions/letters, which have been issued by the Department of Personnel and Administrative Reforms, the notification dated 21.06.1994 or the instructions dated 18.01.1995 have been withdrawn or suspended. A perusal of the letters/instructions issued by the Department of Personnel and Administrative Reforms only indicate change in the process and procedure for finalizing the claim of the employees for correction of date of birth. The right, which had accrued to the petitioner vide notification dated 21.06.1994 on amendment of the statutory Rules, firstly has not been withdrawn by any instructions/letter and in any case, the same could not have been so withdrawn through instruction(s)/letter(s) without issuance of a proper notification as per law.
In the light of the above factual and legal position, the impugned order dated 11.08.2011 (Annexure P-12), which is based on incorrect facts and on total mis-reading of the instructions issued from time to time, cannot sustain and is hereby quashed. The writ petition, therefore, stands allowed.
CWP No. 19610 of 2011 9
The claim of the petitioner for correction of the date of birth from 16.04.1957 to 14.11.1957 in the office record is accepted. The necessary entries be made by the respondents within a period of one month from the date of receipt of certified copy of this order.
(AUGUSTINE GEORGE MASIH)
March 26, 2013 JUDGE
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