Central Administrative Tribunal - Delhi
Veena Grover vs Steel Authorities Of India Ltd on 22 February, 2013
Central Administrative Tribunal Principal Bench OA No. 38/2013 Reserved on : 15.02.2013 Pronounced on : 22.02.2013 Honble Sh. A.K.Bhardwaj, Member (J) Veena Grover W/o Sh. K.L. Grover, R/o 748, Sector -8, R.K. Puram, New Delhi 110 022. Applicant (By Advocate: Sh. O.P. Saxena) Versus 1. Steel Authorities of India Ltd. (A Govt. of India Enterprises), Through its Director (Commercial) Regd. Office, Lodhi Road, New Delhi. 2. The Assistant General Manager, (Personal & Administration of Steel Authority), Steel Authorities of India Ltd., Scope Minar Building, Laxmi Nagar Distt. Centre, New Delhi. Respondents (By Advocate: Sh. Vinay Kumar) O R D E R
The applicant employed as Senior Office Superintendent (Hindi) in Steel Authority of India Ltd. and due to retire on 28.02.2013, has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 questioning the correctness of her date of birth i.e. 26.02.1953 recorded at the time of joining in the Company. Salient contentions of the applicant raised by her in the Original Application are:-
since her elder sister namely Smt. Asha Rani was born on 09.01.1953, it is against all principles of Medical Science that the applicant was born on 26.02.1953;
in the Birth Certificate issued by Municipal Corporation of Amritsar, her date of birth is mentioned as 16.10.1954; and her parents are almost illiterate and, therefore, they did not take care in getting her date of birth recorded in Sanathan Dharam School, Lajpat Nagar, correctly.
2. Mr. Saxena, learned counsel for the applicant, submitted that while passing the impugned order dated 17.11.2012, the respondents disregarded the aforementioned contentions of the applicant and refused to carry out the correction of date of birth on the ground that in terms of Clause 4.12 of the Rules of the Company, in case an employee produces more than one documentary evidence in support of his/her date of birth/age, the certificate indicating highest age is accepted and further in terms of Clause No. 4.10 of Rules Manual: once the date of birth is accepted and recorded in accordance with the descriptive roll/declaration form/service book of the employee and signed/thumb impressed by him/her, the date so recorded shall be deemed as final and binding. According to the applicant, in the impugned order assailed in the present Original Application, various contentions raised by her before SM(P&A) & AGM (P&A) have not been dealt with. Relying upon the judgment of Honble Supreme Court in Mohinder Singh Gill & Another vs. Chief Election Commissioner (1978) 1 SCC 401, he contended that law does not stand still. It moves continually. Once this is recognized, then the task of the Judge is put on a higher plane, he must consciously seek to mould the law so as to serve the needs of the time and must not be a mere mechanic, a mere working mason, laying brick on brick without thought to the overall design. He must be an architect-thinking of the structure as a whole building for society a system of law which is strong, durable and just. Relevant paras i.e. Para Nos. 54 & 55 of the above judgment are reproduced as under:-
54. Law cannot be divorced from life and so it is that the life of the law is not logic but experience. If, by the experiential test, importing the right to be heard will paralyse the process, law will exclude it. It has been said that no army can be commanded by a debating society, but it is also true that the House of Commons did debate, during the days of debacle and disaster, agony and crisis of the Second World War, the life-and-death aspects of the supreme command by the then British Prime Minister 'to the distress of all our friends and to the delight of all our foes'-too historic to be lost on jurisprudence. Law lives not in a world of abstractions but in a cosmos of concreteness and to give up something good must be limited to extreme cases. If to condemn unheard is wrong, it is wrong except where it is overbome by dire social or haphazard solutions should be eschewed.
55. Normally, natural justice involves the irritating inconvenience for men in authority, of having to hear both sides since notice and opportunity are its very marrow. And this principle is so integral to good government, the onus is on him who urges exclusion to make out why. Lord Denning expressed the paramount policy consideration behind this rule of public law (while dealing with the nemo judex aspect) with expressiveness.
"Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking 'the judge was biased'.
We may adapt it to the audi alteram situation by the altered statement:
"Justice must be felt to be just by the community if democratic legality is to animate the rule of law. And if the invisible audience sees a man's case disposed of unheard, a chorus of 'no-confidence' will be heard to say, 'that man had no chance to defend his stance'."
That is why Tuckor LJ in Russol v. Duke of Norfolk (1949) 1 All E.R. 109 (at 118 E) emphasized that 'whatever standard of natural justice is adopted, one A, essential is that the person concerned should have a reasonable opportunity of presenting his case'. What is reasonable in given circumstances is 'in the domain of practicability; not formalised rigidity. Lord Upjohn in Fernando(1) observed that:
'while great urgency may rightly limit such opportunity timeously, perhaps severely there can never be a denial of that opportunity if the principles of natural justice are applicable'. It is untenable heresy, in our view, to look jaw the victim or act behind his back by tempting invocation of urgency, unless the clearest case of public injury flowing from the least delay is self evident. Even in such cases a remedial hearing as soon as urgent action has been taken is the next best. Our objection is not to circumscription dictated by circumstances, but to annihilation as an easy escape from a benignant, albeit inconvenient obligation. The procedural pre-condition of fair hearing, however minimal, even post- decisional, has relevance to administrative and judicial gentlemanliness. The Election Commission is an institution of central importance and enjoys far-reaching powers and the greater the power to affect others' right or liabilities the more necessary the need to hear.
3. It is the contention of the counsel for the applicant that irrespective of the aforementioned provisions of the Rule Manual of SAIL, in view of the fact that in the certificate issued by the Municipal Corporation of Amritsar and the fact that the elder sister of applicant was born on 09.01.1953, respondents should have changed the date of birth of the applicant in their records from 26.02.1953 to 16.10.1954. On the other hand, the learned counsel for the respondents submitted that the anomaly in the date of birth of the applicant and her elder sister need not necessarily lead to the conclusion that it is only the applicant whose date of birth as recorded in the school certificate is incorrect. The possibility of error in date of birth of her elder sister can not be ruled out. He reiterated the stand taken by the respondents in the impugned order. Referring to the submissions made in the counter reply, he contended that the date of birth recorded in service book of the applicant at the time of her joining in SAIL was verified by her. In CBSE higher secondary examination certificate dated 8th June, 1970 and also in the Bio-Data, her date of birth is mentioned as 26.02.1953, therefore, after 34 years of service i.e. more than three decades of joining of the service that too at the fag end of her service, the applicant can not be permitted to question her date of birth at the time when she is due to retire shortly i.e. on 28.02.2013. He placed reliance upon the judgment of Honble Supreme Court in the matter of State of M.P. and Others versus Mohanlal Sharma [(2002) 7 SCC 719], which is reproduced as under:-
1. The respondent herein passed his matriculation examination in the year 1955. The certificate for having passed matriculation examination indicated that the date of birth of the respondent is 19-4-1935. On the strength of the said matriculation certificate, the respondent secured appointment in government service as Lower Division Clerk. The date of birth recorded in the service-book was 19-4-1935. In the year 1975, the respondent joined subordinate accounts service. It is not disputed that on the basis of the date of birth as 19-4-1935, the respondent was to retire on 30-4-1993. It appears that six months before the retirement, the respondent filed an original application before the Madhya Pradesh State Administrative Tribunal, alleging that his correct date of birth is 3-2-1937 and not 19-4-1935. In support of his case, the respondent furnished his horoscope and a certificate from the retired headmaster of the school to the effect that his correct date of birth is 3-2-1937. The Tribunal, relying upon these two documents, held that the correct date of birth of the respondent is 3-2-1937 and not 19-4-1935. On that premise, the original application was allowed and a direction was issued to correct the date of birth of the respondent in the service record as 3-2-1937. It is against the said judgment, the State of Madhya Pradesh is in appeal before us.
We have heard counsel for the parties and perused the record. It is not disputed that the date of birth recorded in the matriculation examination as also in the service record is 19-4-1935. It is also not disputed that the respondent joined service on 24-1-1955. If the contention of the respondent is that the correct date of birth is 3-2-1937, in that event the respondent could not have been appointed in service in the year 1955, as he was much less than 18 years of age. The date of birth, as recorded in the matriculation examination, carries a greater evidential value than the evidential value attached to the certificate given by the retired headmaster showing the date of birth of the respondent. Such evidence is not to be preferred when, admittedly, the date of birth of the respondent as recorded in the matriculation examination was 19-4-1935. The Tribunal erred in relying on the certificate issued by the retired headmaster as well as the horoscope furnished by the respondent.
In that view of the matter, the appeal deserves to be allowed and the order under challenge is set aside. Before we part with the case, we would like to observe that since the respondent has served on the basis of the judgment under challenge for six months, the appellants shall not recover the salary which has already been paid to the respondent during that period.
The appeal is allowed. There shall be no order as to costs.
4. I have heard the learned counsel for the parties and perused the records.
5. Admittedly, during the month of June, 2012, the applicant never questioned her date of birth as recorded in the service book in SAIL. It is only in June, 2012, she approached the Municipal Corporation of Amritsar to verify her recorded date of birth. Before said exercise, she did not possess any birth certificate containing her date of birth as 16.10.1954. It is not disputed by the applicant that her date of birth mentioned in her Bio-data submitted by her in SAIL and also in her CBSC higher secondary certificate is recorded as 26.02.1953. It has been repeatedly ruled by the Honble Apex Court that the date of birth as recorded in the matriculation certificate carries a greater evidential value. The Honble Supreme Court in the matter of Union of India & Ors. vs. Kanti Lal Hematram Pandya (AIR 1995 SC 1339) has also held that when an employee slept over his/her rights to get the date of birth altered for more than 30 years and woke up from his/her deep slumber on the eve of retirement only, the said stale claims and belated applications for alteration in the date of birth recorded in service book at the time of initial entry, made after unexplained and inordinate delay, on the eve of retirement need to be scrutinized carefully and interference made sparingly and with circumspection. The Honble Supreme Court in the matter of U.P. Madhyamik Shiksha Prshad and Others versus Raj Kumar Agnihotri, [(2005) 11 SCC 465], has held that the correction in entries made in Govt. records on the basis of which the Govt. servant got the service cannot be allowed to be changed just a few years before retirement or at the fag end of the retirement. Relying upon the amended rules, Honble Supreme Court further viewed that the date of birth or the age recorded in the service book at the time of entry in the Govt. service shall be deemed to be the correct date of birth or age as the case may be for all purposes and that no application or representation shall be entertained for correction of date of birth or age in any circumstances whatsoever. Relevant para nos. 16 & 18 of the judgment read thus:-
16. Learned counsel for the appellant has also relied on the following judgments of this Court:
1. State of U.P. and oth-ers v. Gulaichi (Smt), 2003 (6) SCC 483.
In this case, Rule 2 of the U.P. Recruitment of Service (Determination of Date of Birth) Rules, 1974 and U.P. Recruitment of Ser-vice (Determination of Date of Birth) (First Amendment) Rules, 1980 was under con sideration by this Court. This Court, after analysing various judgments referred to be-fore them, came to the conclusion as un-der:
"12. In the instant case the Rules and the Amendment Rules referred to above clearly indicate the permissible area for correction of the date of birth. In view of the specific provisions made, it was not permissible to effect change. Additionally, the first appel-late court and the High Court seem to have lost sight of the fact that the person who endorsed changes was not authorized to do so. The original service-book was produced before us by the learned counsel for the ap-pellants. Though the learned counsel for the respondent submitted that we should not look into it, for the purpose of arriving at the truth, we overruled the objection and looked at the original document, which undisputedly was exhibited during trial. The entry i.e. 31-7-1929 appears to have been made simultaneously by one and the same person at the time when other entries were made in FR Form 13. The respondent has herself signed the page at Serial No. 8, whereas the entry relating to the date of birth is at Serial No. 5."
2. State of Uttaranchal and others v. Pitamber Dutt Semwal, (2002) 1 UPLBEC 441 SC.
In this case, here again, this Court was considering Rule 2 of the U.P. Recruitment Service (Determination of Date of the Birth) Rules, 1974, and held as under:
"These rules, the validity of which have not been challenged, clearly stipulate that no application or representation shall be en-tertained for correcting any date or age record and the entry made in the service book shall be deemed to be the correct date of birth. Be that as it may, even dehors the said rule, we are of the opinion that the plea of the respondent that the date of birth was wrongly recorded was highly belated. He joined service in 1964, the service book was prepared in 1965 and according to the ap-pellant, he has signed the said service book at least on three occasions. In any case, the plea of the wrong recording of the age in the service book has been taken, nearly thirty years after the service book was pre pared. In our opinion, the Division Bench was in error in ignoring the provisions of the said Rule 2 and even otherwise, in the facts of this case, there was no occasion for the High Court to have interfered with the decision of the appellant."
3. State of T.N. v. T.V. Venugopalan, (1994) 6 SCC 302.
In this case, this Court held that the rule provided that an application for alteration of recorded date of birth would be enter-tained only if made within five years after entering the service. This Court held that an employee already in service at the time of enforcement of such rule should make the application for correction within five years from the date of enforcement of the rule, otherwise he would lose his right to make such an application and the Govern-ment servant would not be permitted to challenge the entry at the fag end of his ser-vice.
4. Executive Engineer. Bhadrak (R&B) Division, Orissa and others v. Rangadhar Mallik, 1993 Supp (1) SCC 763.
In this case, this Court was considering Rule 65 of the Orissa General Finance Rules stipulating that representation for correc-tion of date of birth made near about the time of superannuation shall not be admitted. This Court held that the representation for correcting the date of birth made by respon-dent 18 years after is not maintainable in law since the entry regarding date of birth made in the service record was on the basis of the horoscope produced by the employee himself and after obtaining his signature.
5. Government of Andhra Pradesh and another v. M. Hayagreev Sarma, (1990) 2 SCC 682.
A. P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 was under consideration in this case by this Court. The date of birth of the employee was recorded in the service book on the basis of school certificate at the time of entry into service. The employee's application for al-teration in the date of birth so recorded was finally rejected prior to coming into force of the rules. A subsequent claim was made by the employee for alteration after commence-ment of the rules. This Court held that the subsequent claim for alteration after the commencement of the rules even on the basis of the extracts of entry contained in births and deaths register maintained un-der Births, Deaths and Marriages Registra-tion Act, 1886 was not open.
6. Union of India v. Harnam Singh, (1993) 2 SCC 162.
In this case, there was a delay of five years in seeking for alteration prescribed in Note 5 to FR 56(m) as substituted in 1979. This Court held that those already in service prior to 1979, for a period of more than five years, obliged to seek alteration within the maxi-mum period of five years from the date of coming into force of amended note 5 in 1979. Alteration sought by the employee in 1991, 35 years after his induction into the service during which period he had several occa-sions to see the service book to raise any objection regarding his date of birth cannot be allowed in view of unexplained and inor-dinate delay.
7. Burn Standard Co. Ltd. and others v. Dinabandhu Majumdar and another, AIR 1995 SC 1499.
"10. Entertainment by High Courts of writ ap-plications made by employees of the Gov-ernment or its instrumentalities at the fag end of their services and when they are due for retirement from their services, is unwar-ranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its in-strumentalities will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employ-ees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extraordinary nature of the jurisdic-tion vested in the High Courts under Article 226 of the Constitution is not meant to make employees of Government or its instrumen-talities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, plac-ing reliance on the so-called newly found material. The fact that an employee of Gov-ernment or its instrumentality who will be in service for over decades, with no objec-tion whatsoever raised as to his date of birth accepted by the employers as correct, when all of a sudden comes forward towards the fag end of his service career with a writ ap-plication before the High Court seeking cor-rection of his date of birth in his Service Record, the very conduct of non- raising of an objection in the matter by the employee, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his 'Service and Leave Record' could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court."
8. In The Secretary & Commissioner. Home Department & Ors. v. R. Kirubakaran, JT 1993 (5) SC 404, this Court held:
An application for correction of the date of birth by a public servant cannot be entertained at the fag end of his service. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction inasmuch as others waiting for years below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury inasmuch as because of the correction of the date of birth the officer concerned continues in office in some cases for years within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion forever. According to us, this is an important aspect, which cannot be lost sight of by the Court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless clear case on the basis of materials which can be held to be conclu-sive in nature, is made out by the respon-dent, the Court or the Tribunal should not issue a direction, on the basis of materials which make such claim only plausible and before any such direction is issued, the Court must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the pro-cedure prescribed, and within time fixed by any rule or order. The onus is on the appli-cant to prove about the wrong recording of his date of birth in his service book.
* * * As such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the Court or the Tribunal concerned should be more cautious because of the growing tendency amongst a section of pub-lic servants, to raise such a dispute, with-out explaining as to why this question was not raised earlier. In the facts and circum-stances of the case, it is not possible to up hold the finding recorded by the Tribunal."
It is thus seen from the above-quoted judgments that this Court has consistently taken the view that correction in entries made in Government records on the basis of which the Government servant got the service cannot be allowed to be changed just a few years before retirement or at the fag end of his retirement.
18. The amended rule of 1980 was deemed to have come into force w.e.f 28-05-1974 and as per the substituted Rule, the date of birth or the age recorded in the service book at the time of entry into the Government service shall be deemed to be the correct date of birth or age, as the case may be, for all purposes and that no appli-cation or representation shall be entertained for correction of date of birth or age in any circumstances whatsoever. The respondent has given his date of birth as 30-07-1941 at the time of entry into service which has also been recorded in the service records of the respondent. The above amended rule which come into force w.e.f. 28-05-1974 stipulates that no application or represen-tation shall be entertained for correction of such date or age in any circumstances what-soever and that the date of birth or age re-corded in the service book at the time of his entry into government service shall be deemed to be his correct date of birth or age as the case may be for all purposes. Honble Apex Court in the case of State of Maharashtra & Another versus Gorakhnath Sitaram Kamble & Others [2010 (13) SCALE 355] also recorded the view that the application for correction of date of birth can not be entertained at the fag end of service. Relevant para nos. 13 to 20 of the judgment are reproduced as under:-
13. In Union of India Vs. Harnam Singh, (1993) 2 SCC 162, this Court was confronted with almost similar facts. The Court laid down as under :-
"In the instant case, the date of birth recorded at the time of entry of the respondent into service as May 20, 1934 had continued to exist, unchallenged between 1956 and September 1991, for almost three and a half decades. The respondent had the occasion to see his service-book on numerous occasions. He signed the service-book at different places at different points of time. Never did he object to the recorded entry. The same date of birth was also reflected in the seniority lists of LDC and UDC, which the respondent had admittedly seen, as there is nothing on the record to show that he had no occasion to see the same. He remained silent and did not seek the alteration of the date of birth till September 1991, just a few months prior to the date of his superannuation. Inordinate and unexplained delay or laches on the part of the respondent to seek the necessary correction would in any case have justified the refusal of relief to him. Even if the respondent had sought correction of the date of birth within five years after 1979, the earlier delay would not have non-suited him but he did not seek correction of the date of birth during the period of five years after the incorporation of Note 5 to FR 56 in 1979 either. His inaction for all this period of about thirty-five year from the date of joining service, therefore precludes him from showing that the entry of his date of birth in service record was not correct."
14. In State of Tamil Nandu Vs. T.V.Venugopalan, (1994) 6 SCC p.302, this court was clearly of the opinion that the government servant should not be permitted to correct the date of birth at the fag end of his service career. The Court, in very strong terms, observed as under :-
".....The government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service register. It is common phenomenon that just before superannuation, an application would be made to the Tribunal or Court just to gain time to continue in service and the Tribunal or courts are unfortunately unduly liberal in entertaining and allowing the government employees or public employees to remain in office, which is adding an impetus to resort to the fabrication of the record and place reliance thereon and seek the authority to correct it. When rejected, on grounds of technicalities, question them and remain in office till the period claimed for, gets expired. This case is one such stark instance. Accordingly, in our view, the Tribunal has grossly erred in showing overindulgence in granting the reliefs even trenching beyond its powers of allowing him to remain in office for two years after his date of superannuation even as per his own case and given all conceivable directions beneficial to the employee. It is, therefore, a case of the grossest error of law committed by the Tribunal which cannot be countenanced and cannot be sustained on any ground....."
15. In Secretary and Commissioner, Home Department and others Vs. R.Kirubakaran, (1994) Suppl.(1) SCC 155, the Court again reiterated the legal position that the courts have to be extremely careful when application for alteration of the date of birth is filed on the eve of superannuation or near-about that time. The court observed as under :-
".......As such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the court or the tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants to raise such a dispute without explaining as to why this question was not raised earlier......."
16. Learned counsel for the respondent has placed reliance on the judgment of this Court in U.P.Madhyamik Shiksha Parishad & Ors. Vs. Raj Kumar Agnihotri, (2005) 11 SCC p.465. In this case, this Court has considered number of judgments of this Court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career.
17. In another judgment in State of Uttaranchal & Ors. Vs. Pitamber Dutt Semwal, (2005) 11 SCC p.477, the relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.
18. Two decades ago this Court in Government of A.P.& Anr. Vs. M.Hayagreev Sarma, (1990) 2 SCC p.682, has held that subsequent claim for alteration after commencement of the rules even on the basis of extracts of entry contained in births and deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886, was not open. Reliance was also placed on State of Uttar Pradesh & Ors. Vs. Gulaichi (Smt.), (2003) 6 SCC p.483, State of Tamil Nadu Vs. T.V.Venugopalan, (supra), Executive Engineer, Bhadrak ( R & B) Division, Orissa & Ors. Vs. Rangadhar Mallik, (1993) Suppl.1 SCC p.763, Union of India Vs. Harnam Singh, (supra) and Secretary and Commissioner, Home Department & Ors. Vs. R.Kribakaran, (surpa).
19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of large number of employees, therefore, any correction at the fag end must be discouraged by the Court. The relevant portion of the judgment in Secretary and Commissioner, Home Department & Ors. Vs. R.Kribakaran, (surpa) reads as under :
"An application for correction of the date of birth by a public servant cannot be entertained at the fag end of his service. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion forever. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible and before any such direction is issued, the court must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within time fixed by any rule or order. The onus is on the applicant to prove about the wrong recording of his date of birth in his service-book."
20. In view of the consistent legal position, the impugned judgment cannot be sustained and even on a plain reading of the Notification and the instructions set out in the preceding paragraphs leads to the conclusion that no application for alteration of date of birth after five years should have been entertained.
7. In view of the law laid down by Honble Supreme Court ibid and also in view of the fact that the date of birth of the applicant mentioned in her Bio-data and CBSE higher secondary school certificate dated 8th June, 1970 is recorded as 26.02.1953 and also for the reason that she made request of correction of date of birth after 35 years of service, I decline the prayer of correction of her date of birth/age. However, in Food Corporation of India Vs. A.K. Ghosh (2001 (1) ATJ 25) Honble Supreme Court viewed that in exceptional and deserving cases the Appropriate Authority of the Government would remain clothed with a discretionary power to lift the time-bar to dispense substantive justice in an appropriate case. Para 14 of the judgment reads as under:-
14. In both the decisions cited it is thus seen that the dates of birth of Government servants concerned were recorded in their service Books on the basis of certain documents filed in one case as Admit Card and, in the other, opinion of medical expert on ossification test and later on they submitted different documents and called upon the respective authorities to alter their dates of birth on the basis of these new documents and this they did at the fag end of their service career on receiving the notice of superannuation. This naturally, could give rise to the doubt that the subsequent documents which they were producing were after thought and the product of their clever design to make some wrongful gain by reducing their age by a number of years. It might be reasonably suspected that none of these subsequently filed documents came into origin at the time of his appointment when he furnished different testimonials to show his age. But there is no room for any such doubts being raised regarding the genuineness or bona fides of the document filed by the respondent in the present case. Here, as we have already observed, admittedly, the respondent has been found to rely upon one and a single document uniformly from the very beginning about his date of birth, namely, Matriculation Certificate and undisputedly, also this certificate was filed by him before the authority along with his declaration form at the very outset. His claim has been found by us to have been substantive. Thus, these facts make this case clearly distinguishable from the cases under reference. The Supreme Court or the Division Bench of this Court in the abovementioned judgments have not decided a case of this nature. Such verdicts have not been given in a case Matriculation Certificate, an admittedly genuine document, was produced by the Government servant concerned before the authority and admittedly, the authority accepted the date of birth as declared by the candidate on the basis of that Matriculation Certificate and where later, the authority comes forward with a case that the said date of birth was not a correct one though admitting the genuineness of that Matriculation Certificate. Anticipating such an eventuality the Apex Court has perhaps used the phrase as a matter of right meaning thereby that they did not intend this prohibition of general or hard and fast nature, but that in exceptional and deserving cases the appropriate authority of the Government would remain clothed with a discretionary power to lift the time-bar to dispense substantive justice in an appropriate case.
8. Thus in the backdrop of the view so taken by the Honbble Supreme Court in said case as well as in the case of Mohinder Singh Gill vs. Chief Election Commission (supra), it would be open to the respondents to examine the plea of the applicant of anomaly in her date of birth vis-`-vis that of her elder sister Ms. Asha Rani as also the plea of record of Municipal Corporation of Amritsar. Subject to said observations, the OA is disposed of. No costs.
(A.K. Bhardwaj) Member (J) /sarita/