Central Administrative Tribunal - Chandigarh
Mohammad Ramzan Sheikh vs Union Of India Through Ministry Of ... on 24 March, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH, CHANDIGARH. O.A.No.062/00002/2014 & Date of Decision : 24.03.2015 MA.No.062/00002/2015 Reserved on: 17.03.2015 CORAM: HONBLE MRS. RAJWANT SANDHU, ADMINISTRATIVE MEMBER HONBLE DR. BRAHM A. AGRAWAL, JUDICIAL MEMBER Mohammad Ramzan Sheikh, Aged 57 years, S/o Ghulam Ahmed Sheikh, R/o Qullan Kangan, District Ganderbal, Kashmir. Applicant Versus 1. Union of India through Ministry of Textile, Office of the Development Commissioner Handicrafts Field Administrative Cell, Government of India, New Delhi. 2. Regional Director (NR) O/o THDC (H), New Delhi. 3. Deputy Director A/E Handicrafts Field Administrative Cell Shahdad House Khan Mohalla Baghat-e-Barzulla Srinagar. 4. Assistant Director (A&C) Handicrafts Field Administrative Cell, Shahdad House Khan Mohalla Baghat-e-Barzulla, Srinagar. . Respondents Present: Mr. M.M. Dar, counsel for the applicant Mr. Deepak Agnihotri, counsel for the respondents O R D E R
HONBLE MRS. RAJWANT SANDHU, MEMBER (A)
1. This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
(i) Issue a writ, order or direction to the respondents in the nature of certiorari for quashing the impugned rejection order bearing no.DCH/FAC/PT/109-2013-14/4761 dated 06.03.2013 (Annexure K).
(ii) A writ in the nature of Prohibition, prohibiting the respondents from acting upon the impugned rejection (Annexure K).
(iii) A writ in the nature of Prohibition, prohibiting the respondents from retiring the petitioner / applicant from his services on the basis of age wrongly recorded in his service book as 31.05.1995 and allow him to continue in service on the basis of his actual age as authenticated by the board and school authorities i.e. 10.04.1957.
(iv) A writ in the nature of Mandamus, commanding the respondent to record the age of the petitioner / applicant in his service record as 10.04.1957 instead of wrong entered age i.e. 31.05.1955.
2. MA No.062/00013/2014 has been filed seeking direction to the respondents not to retire the applicant from his services on the basis of age wrongly recorded in his service book as 31.05.1955 and allow him to continue in service on the basis of his actual age as authenticated by the Board and School Authorities i.e. 10.04.1957 till the original application is decided in the interest of justice.
3. The background of the matter is that the applicant was initially appointed as Assistant Instructor in the respondent Department on consolidated salary of Rs.400 per month vide order dated 07.05.1979 (Annexure A). After serving in the respondent Department for about 11 years, the services of the applicant were considered for temporary appointment against the newly created post in the year 1990 vide Order No West Block 7 RU Puran New Delhi 110006 dated 24.04.1990 in which the applicant was figuring at Sl.No.17 and was regularized against the post retrospectively from 03.10.1985. The respondent Department in the year 2009 prepared a list of all its employees including the category of the applicant and the applicant while examining the list in his Department for the first time learnt that his date of birth had not been rightly recorded in his service record as the same was recorded as 31.05.1955 instead of 10.04.1957 as is reflected in his school leaving certificate and also recorded before J&K Board of School Education which at the time was known as J&K Secondary Education Jammu Registration of Regular Candidates. As per the Board Entry also the applicants date of birth has been shown as 10.04.1957. The respondents wrongly recorded date of birth of the applicant as 31.05.1955. Even while submitting the certificate of fitness the applicant was shown as 33 years of age on 29.06.1990 when he produced the certificate before the respondents which was duly countersigned by the then Medical Officer and Head Master Government Secondary School Qullan Kangan. To substantiate this the copy of the fitness certificate dated 29.06.1990 received by the respondents is annexed as Annexure D.
4. When there was no response to the verbal requests made by the applicant for correction of his date of birth, he filed the formal representation against letter no.DCH/FAC/PT(109-2009-10)/1898 dated 16.10.2009 wherein the age of the applicant as per his contention was first time conveyed to him wrongly and he filed the representation against the wrong entry on 31.12.2009 (Annexure E). Ultimately, the applicant approached the respondents through RTI in the year 2012 and made a formal application on 24.09.2012 seeking information and also the copy of his service record to learn on what basis, his date of birth had been reflected as 31.05.1955 instead of 10.04.1957 (Annexure G). The applicant then learnt that his date of birth had been recorded by the respondents on the basis of a Part II office order issued on 07.04.1992 wherein his date of birth had been shown as 31.05.1955 (Annexure H). The applicant again filed a representation dated 06.02.2012 for correction of date of birth (Annexure J) and in response to this representation, the respondents issued order no.DCH/FAC/PT(109-2013-14/4761 dated 06.03.2013 rejecting the request of the applicant for change of date of birth in the service record and he was also conveyed that letter in this regard was issued in the year 2009 but the fact of the matter was that the communication had been addressed without appreciating the actual and true facts involved in the matter. Copy of the rejection order dated 16.03.2013 is annexed as Annexure K.
5. In the grounds for relief it has, inter-alia, been stated as follows:-
i) The impugned communication / rejection order dated 16.03.2013 (Annexure K) deserves to be quashed and set aside on the ground that same has been issued without following the principles of natural justice as admittedly the applicant has filed series of representations based on material already placed by him before the respondents at the time of his first engagement on consolidate basis i.e. in the year 1979 and it was the duty of the respondents to issue a notice to the applicant and direct him to appear before them personally for hearing him and then only the respondents can take a decision if not satisfied with the submissions which were required to be made by the applicant.
ii) The impugned communication / rejection order dated 16.03.2013 (Annexure K) deserves to be quashed and set aside on the ground that while examining the annexures annexed with OA especially the date of birth certificate of the applicant and the fitness certificate as produced by the applicant before the respondents at the time of his initial appointment and also in the year 1990 when the respondents countersigned his fitness certificate wherein the age of the applicant was determined / reflected as 33 years in the year 1990, it clearly indicates that the age of the applicant is actually 1957 as recorded by the respondents.
iii) The Board Authorities at the relevant point of time recorded the age of the applicant as 10.04.1957 while preparing the registration numbers of all the students of the time of the school where the applicant was studying, as after passing of the 9th class examination the students were required to enroll before the Board of School Education and for that purpose proper statement of the candidates who were reading in school was forwarded to the Board Authorities for their formal registration. In this regard a list of candidates of Government High School Gund, Ganderbal, regarding the date of birth of the applicant was relevant. The High School prepared a list of candidates in 1975 for November session and in the list the applicant is figuring at Sl.No.5. A copy of this record was also with the respondents as produced by the applicant at the time of his initial appointment but despite this when the applicant was apprised regarding the wrong entry of his age, he immediately approached the school authorities. The School has been upgraded and is at present Govt. Boys Higher Secondary, Sonmarg. The Principal of the school issued the original regular registration sheet wherein it was also stated that the age of the petitioner is 10.04.1957 vide his certificate dated 14.09.2012. It clearly indicates that the age of the applicant is 1957 and not 1955 as reflected by the respondents in his service book and this error requires to be rectified by the respondents which they have negated without taking into consideration rights of the applicant guaranteed to him under Article 14, 15 & 16 of the Constitution.
6. In the counter reply filed on behalf of the respondents, it has been stated that the OA is not maintainable as the petitioner seeks change of his date of birth at the fag end of his service career, which is not permissible under law. It has further been stated that every person newly appointed in government service is required to furnish personal bio-data including date of birth at the time of appointment, with confirmatory documentary evidence. The applicant submitted the age proof in the shape of affidavit on non-judicial paper, certifying his age to be recorded as 31.05.1955, duly signed by him and attested by judicial authority, dated 25.03.1992 annexed as Annexure R-1. The date of birth furnished by the government employee/applicant on the eve of his appointment/regularization of his services, was accordingly recorded in his service book as 31.05.1955 and Part II order, dated 07.04.1992 issued by the Department reflecting the date of birth of the applicant as 31.05.1955 (Annexure R-2). After regularization of his services, as per rules, the service book of all the concerned employees, including the applicant was required to be prepared / updated from the date of their appointment in the government service. The applicant was asked to furnish the bio-data, including documentary evidence for determining age/date of birth, to be recorded in the service book. The applicant submitted proof of age in the shape of affidavit, on non-judicial paper, duly signed by him showing his age as 31.05.1955, attested by judicial signatory, dated 07.04.1992 which was recorded in his service book.
7. The applicant submitted a representation to the department for correction/alteration of his date of birth at a belated stage in the year 2009 after a lapse of 19 years, from the date of issuance of order of his regularization on 24.04.1990 which is not permissible in terms of rules as being time barred. Part II order was issued by the department vide order dated 07.04.1992, wherein the date of birth of the applicant has been shown as 31.05.1955 at serial number 3 of the said order. The applicant never represented against the order but submitted a representation after a lapse of two decades from his appointment/regularization into the government service.
8. Arguments advanced by the learned counsel for the applicant were heard on 16.03.2015. Learned counsel reiterated the background of the matter and he stated that copy of the Part II order, dated 07.04.1992 had not been provided to the applicant, otherwise, he would have represented against the same at the very time. Learned counsel stated that as per the School Leaving Certificate, it was clear that the date of birth of the applicant was 10.04.1957. This document had been submitted to the respondents at the time when the applicant joined service on consolidated pay and also when his services were regularized. The respondents had not taken note of this certificate but had merely relied on an affidavit which appeared to be a tampered document as there were insertions in the same. He stated that the matter first came to the notice of the applicant when the notification of 2009 was issued and he had been representing for correction of his date of birth since then. Numerous representations had been submitted by the applicant. Hence, the stand of the respondents that the applicant had submitted the applications for correction of date of birth at the fag end of his service career was patently incorrect. Keeping in view the date of birth of 10.04.1957, the applicant was to superannuate in April 2017 and even as per the date of birth of 31.05.1955 recorded by the respondents, the applicant would superannuate in May 2015, while he had been moving his representations for correction of date of birth since 2009 onwards. Although it was mentioned in the letter dated 16.03.2013 that the application for correction of date of birth had been rejected earlier on 15.10.2009, but the letter of 15.10.2009 had never reached the applicant.
9. Learned counsel also referred to the J & K Civil Service regulations wherein rule 35-AA (a) (ii) read as follows:-
(ii). In case of Government Employees where prescribed qualification is below matriculation, the school leaving certificate duly signed by the concerned Head of Government School and countersigned by the concerned Gazetted Officer of the Education Department in immediate administrative control of the said Institution (in case the Head of Institution/School is not a Gazetted Officer). Likewise, such certificates issued by the Head of a Government recognized Private Institution/ School shall be countersigned by the concerned Gazetted Education Officer, who is in immediate administrative control of Government Institutions in the area, such as Zonal Educational Officer. Since the applicant had asserted time and again that his date of birth as per the school records was 10.05.1957, the respondents should have at least conducted an enquiry into the matter rather than rejecting the case outright with reference to the so called affidavit and stating that the representation for change of date of birth had been filed at the fag end of the service career of the applicant.
10. Learned counsel also referred to Bharat Coking Coal Ltd. & Ors. Vs. Chhota, Birsa Uranw in Civil Appeal No. 4890 of 2014, decided on 25.03.2014 wherein it has been held as follows:-
Service Law- Date of Birth Correction in service record- Approach of Court- Reiterated that unless a clear case on basis of materials which can be held to be conclusive in nature is made out by employee, court/tribunal should not issue direction on the basis of materials which make such claim only plausible- Further held, date of birth of employee is to be determined as per prescribed applicable rules or framework existing in organization- However, also clarified that with an aim to prevent cascading inconveniences caused by change of date of birth, wronged employee should not be denied his rights especially when he had adhered to procedure laid down and attempted to avoid litigation by resorting to in-house mechanisms- Public corporations/departments should not benefit from their own omission of duty In instant case, appellant Company failed to follow procedure as laid down in implementation instruction - It was appellants omission and not inaction of respondent which led to dispute being raised at belated stage Hence, respondent employee entitled to change in his date of birth in terms of implementation instruction on basis of his school leaving certificate National Coal Wage Agreement III, Implementation Instruction 76.
He also cited High Court of J & K at Srinagar Farooq Ahmad Vs. State of J&K & Ors. in SWP No. 305 of 2011, CMP No. 462 of 2011, decided on 19.05.2011, wherein it had been directed that:-
When dispute is raised and issue joined about the correctness of recorded date of birth, then it becomes legal duty of concerned Government to take steps for ascertaining the correct and actual date of birth of an employee.
11. Sh. Deepak Agnihotri, learned counsel for the respondents was present on 17.03.2015 to assist the Bench. He fairly conceded that the record such as school leaving certificate indicating the date of birth of an employee should be relied upon for recording the date of birth in the service records. He stated that he would have no objection if the matter was referred to the respondent Department to enquire into the matter and consider the claim of the applicant afresh within a reasonable time frame.
12. We have given our carefully consideration to the matter. It appears that although the applicant was representing regarding correction of his date of birth in the service record since 2009 and this date is well before the date of retirement as per existing records i.e May, 2015, but the respondent Department continued to take the technical ground that the application for correction of the date of birth had been filed at the fag end of the service of the applicant and hence rejected the request although the school records should have been examined by the respondent Department and a proper enquiry conducted in the matter. This OA is therefore disposed of with direction to the respondent Department to consider the documents relating to the school attendance of the applicant wherein the date of birth of the applicant is indicated as 10.04.1957. Verification of these documents may be done from the school attended by the applicant. The applicant may also be associated with this enquiry and the process should be completed positively within one month and decision taken regarding the claim of the applicant for change of his date of birth in the service record as per the school records. Action in this regard may be completed latest by 30.04.2015. In any case the applicant may not be retired from service before decision is taken regarding his request for correction of date of birth.
13. This OA is disposed of as per above directions. MA.No.062/00002/2015 is also disposed of accordingly. No costs.
(RAJWANT SANDHU) ADMINISTRATIVE MEMBER.
(DR. BRAHM A. AGRAWAL) JUDICIAL MEMBER Place: Chandigarh Dated: 24.03.2015 sv:
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(OA.No.062/00002/2014) titled (MOHD. RAMZAN SHEIKH VS. UOI & ORS.)