Central Administrative Tribunal - Jaipur
Mahipal Yadav vs M/O Finance on 11 May, 2023
1
OA No. 283/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 283/2016
Order Reserved on: 03.05.2023
DATE OF ORDER: 11.05.2023
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
Mahipal Yadav S/o late Sh. Banwari Lal, by caste
Yadav, aged about 59 years, R/o 13, Yadav Nagar,
Nine Shop, Panipech Jaipur. Presently posted as
Superintendent, Central Excise Department, C-
Scheme, Jaipur.
....Applicant
Shri C.P. Sharma, counsel for applicant.
VERSUS
1. Union of India through its Secretary, Ministry of
Finance, Department of Revenue, North Block, New
Delhi.
2. Chief Commissioner, Central Excise & Service Tax
Department, NCR Building, Statue Circle, C-
Scheme, Jaipur.
.... Respondents
Shri Kinshuk Jain, counsel for respondents.
ORDER
Per: Hina P. Shah, Judicial Member The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs:- 2 OA No. 283/2016
"(a) That by appropriate orders, directions, instructions impugned orders dated 04.08.2014 (Annexure A-1) to the extent of applicant and order dated 18.03.2016 (Annexure A-2) be quashed and set aside.
(b) That by appropriate orders, directions, instructions respondents be directed to retire the applicant on the basis of correct date of birth i.e. 19.10.1958 with all consequential benefits.
(c) Any other relief which the Hon'ble Tribunal thinks just and proper in the circumstances of the case in favour of the humble applicant may also be allowed.
(d) Cost of the O.A. be awarded to humble applicant."
2. The brief facts of the case, as stated by the applicant, is that he is working on the post of Superintendent, Central Excise Department with respondent No. 2. In the service record, respondent- department entered his incorrect date of birth i.e. 26.12.1956, while his correct date of birth is 19.10.1958, which is evident from the Birth Certificate (Annexure A/3) issued by the Health Department, Government of Haryana, bearing registration No. 1589 dated 24.10.1958. His father has expired on 19.11.1981 leaving behind three sons and two daughters. The details of the surviving members are as under:-
3OA No. 283/2016
S. No. Name Date of birth I Smt. Mishri Devi 20.09.1957 Ii Sh. Mahipal Yadav (Applicant) 19.10.1958 Iii Satveer Yadav 08.03.1960 Iv Smt. Santra Devi 02.08.1963 V Dilbag Yadav 03.03.1968
The details of date of birth of his brothers and sisters are as per the Certificates issued by competent authorities. Thus, on the basis of his birth certificate, he submitted a representation on 05.09.2008 to respondent no. 2 to rectify his date of birth in service record. Vide order dated 04.08.2014, (Annexure A/1), respondents have issued a list of employees, who are going to retire in next one or two years and applicant's name appeared at Sr. No. 52 showing his incorrect date of birth as 26.12.1956. Applicant immediately submitted representations dated 19.10.2015 as well as 07.01.2016 to rectify his date of birth in service record. In pursuance of the said representations, respondents have rejected his request vide order dated 18.03.2016 (Annexure A/2). Thus, feeling aggrieved by the action of the respondents, applicant has approached this Tribunal for redressal of his grievance.
3(a). After issue of notices, respondents have filed their reply stating that the applicant has joined as Inspector in Central Excise Department on 02.11.1981 4 OA No. 283/2016 and his date of birth was mentioned in service record as December 26, 1956 on the basis of Matriculation Examination Certificate of Board of Secondary Education, Haryana and the same is evident from the entry in the service book, (Annexure R/1), which is also having his signature. Applicant made a representation for correction in date of birth vide his letter dated 05.09.2008, (Annexure A/7), i.e. after a service of approx. 27 years in the department. Thus, since applicant slept on the said issue for approx. 27 years, present O.A. is time barred. His said representation was examined in the light of G.I. M.H.A, OM No. F.9/1/61-Estt.(A) dated 17 November, 1962, (Annexure R/2), wherein it has been decided that request from Govt. servants for alteration of date of birth should not be entertained after the preparation of service book and in any event not later than the completion of probation period or declaration of quasi-permanency, whichever is earlier. 3(b). The respondents also state that as per Note 5 below FR-56 as amended by G.I, D.P. & A.R., Notification No. 19017/7/79-Ests. (A) dated 30th November, 1979, published as SO 3997 in the Gazette of India, dated 15th December, 1979, (Annexure R/3), 5 OA No. 283/2016 an alteration of date of birth of a Govt. servant can be made, with the sanction of Ministry or Department of the Central Govt. only on certain conditions. Respondents further stated that in the order dated 04.08.2014, the date of birth of the applicant has been mentioned on the basis of valid document i.e. Matriculation Examination Certificate of Board of Secondary Education., Haryana. Thus, it is prayed that the applicant is not entitled for any relief and the O.A. deserves to be dismissed with heavy costs. In support of their contentions, respondents have relied upon several judgments and a few of them are as under:-
"(a) State of Tamil Nadu vs. T.V.
Venugopalan (Civil Appeal No. 5422 of 1994)) decided by the Hon'ble Supreme Court vide its judgment dated 03.08.1994.
b) State of Haryana vs. Satish Kumar Mittal and Another (Civil Appeal No.7415 of 2010) decided by the Hon'ble Supreme Court vide its judgment dated 07.09.2010.
c) State of M.P. & Ors. vs. Premlal Shrivas (Civil Appeal No. 2331 of 2004) decided by the Hon'ble Supreme Court vide its judgment dated 19.09.2011.
d) Factory Manager Kirloskar Brothers Ltd.
vs. Laxman [Special Leave to Appeal (C) Nos. 2592-2593/2018] decided by the Hon'ble Supreme Court vide its order/judgment dated 25.04.2019."
4. Applicant has filed a rejoinder denying the submissions of the respondents. He further stated that 6 OA No. 283/2016 he submitted his first representation dated 05.09.2008 for correction of date of birth in his service record i.e. 8 years prior to his retirement, which was 31.12.12016. Since he has relied on his birth certificate issued by Health Department, Government of Haryana, said reliable document cannot be ignored. Therefore, when inspected his school register, his date of birth was mentioned as 26.12.1956 but when he found that his right date of birth is as per Birth Register retained by competent authority, it was found as 19.10.1958. Thus, such a valid document cannot be ignored by respondent-department as it is strong possible evidence of birth of applicant. Therefore, it is clear that the respondents without any justified reasons have rejected his genuine and legitimate request of change of date of birth in his service records. In support of his submissions, applicant has relied upon following judgments, which are as under:-
"(i) CIDCO vs. Vasudha Gorakhnath Mandevlekar (Civil Appeal No. 3615 of 2009) decided by the Hon'ble Supreme Court vide its judgment dated 15.05.2009.
(ii) Smt. Vasudha Gorakhnath Mandvilkar
vs. The City and Industrial
Development Corporation of
Maharashtra Ltd. (Civil Writ Petition No. 6962 of 2006) decided by the Hon'ble Bombay High Court vide its order/judgment dated 17.04.2008."
7OA No. 283/2016
5. Heard learned counsels for the parties and perused the material available on record.
6. The applicant as well as the respondents have reiterated their submissions as made earlier.
7. The question which requires to be considered in the present matter is whether date of birth of the applicant can be altered after approx. 27 years of service when rules do not provide for the same.
8. The crux of the case is that applicant has joined as Inspector in Central Excise Department on 02.11.1981 and his date of birth was mentioned in service records as December 26, 1956 on the basis of Matriculation Examination Certificate of Board of Secondary Education, Haryana provided by the applicant himself and the same is evident from the entry in service book, which is also having his signature. According to applicant, the date of birth of all his brothers and sisters including the applicant prove from the certificates issued by the Sarpanch, Gram Panchayat, Hudina as well as Jamabandi record. The details of date of birth of his brothers and sisters including the applicant are as under:-
8OA No. 283/2016
S. No. Name Date of birth I Smt. Mishri Devi 20.09.1957 Ii Sh. Mahipal Yadav (Applicant) 19.10.1958 Iii Satveer Yadav 08.03.1960 Iv Smt. Santra Devi 02.08.1963 V Dilbag Yadav 03.03.1968
9. It is the case of the applicant that on the basis of the birth certificate issued by the Health Department, State of Haryana, he submitted representation on 05.09.2008 to respondent No. 2 seeking rectification in his date of birth in service record. But respondents did not take any steps to rectify the same and applicant as per the order issued by respondent no. 2 dated 04.08.2014 (Annexure A/1) with regard to employees about to retire within a year or two, found his name appearing at Sl. No. 52 in the said list only because of his incorrect date of birth i.e. 26.12.1956 showing him as retired on 31.12.2016.
10. Applicant thereafter represented vide letters dated 19.10.2015 and 07.01.2016 to rectify his date of birth in service record. Accordingly, respondent No. 2 passed order dated 18.03.2016 (Annexure A/2) whereby representations of the applicant were rejected. In the said order, it was mentioned by the respondents that the request of the applicant regarding change of date of birth in service records from 26.12.1956 to 19.10.1958 has already been 9 OA No. 283/2016 rejected on merits. However, his representations were again examined and the same was not found to be considerable in view of Note 5 below FR 56 as amended by G.I.,D.P. & A.R. Notification No. 19017/7/9-Ests.(A) dated 30.11.1979. We find that the same is published as SRO 3997 in the Gazette of India dated 15th December, 1979, wherein it has been mentioned that an alteration of date of birth of a Govt. servant can be made, with the sanction of a Ministry or Department of the Central Govt. under which the Government servant is serving, only on certain conditions. As per G.I., M.H.A., OM No. F/9/1/61- Ests.(A) dated 17th November, 1962, it has been decided that requests from Govt. servants for alteration of the date of birth should not be entertained after the preparation of their service books and in any event not later than the completion of the probation period or declaration or quasi- permanency, whichever is earlier. The date of birth of a Government servant may, however, be altered at a late stage by a Department of the Central Government and Administrator or a Head of Department, if he is satisfied that a bona fide clerical mistake has been committed and that it should be rectified. Efforts 10 OA No. 283/2016 should, however, be made to settle the matter within the period stated above.
11. As per Note 5 below FR 56 as amended by G.I. D.P. & A.R. Notification No. 19017/7/9-Ests.(A) dated 30.11.1979, published as SO 3997 in the Gazette of India dated the 15th December, 1979 and take effect from that date, an alteration of date of birth of a Government servant can be made, with the sanction of a Ministry or Department of the Central Govt., under which the Govt. servant is serving, if -
"(a) a request in this regard is made within five years of his entry into Government service;
(b) it is clearly established that a genuine bona-
fide mistake had occurred; and
(c) the date of birth so altered would not make him ineligible to appear in any School or University or Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered Government service."
12. In the present case, applicant has made a request for change of date of birth in service records after a service of approx. 27 years. Also we do not find any genuine bona-fide mistake that has occurred for applicant to make an application in the year 2008 for change of date of birth in service records. We do not 11 OA No. 283/2016 find that all of a sudden, he has come to know about the same as the service book/records must have been examined by him on several occasions for last 27 years and birth certificate, which is annexed to the O.A. at Annexure A/3 is clear that the same is issued only on 23.04.2008, which does not bear the name of the child, neither name of mother is shown in the same though applicant in his details has mentioned that his date of birth is 19.10.1958. But in the year 2008, when the certificate was issued, the name of the applicant obviously must have been there and also name of mother must have been there. But instead the main details stand missing in the birth certificate itself. Also at the time of entry in service, applicant himself has produced his Matriculation Examination Certificate of Board of Secondary Education, Haryana. Also we do not find other document produced by him at any point of time from his date of entry in service till the date of representation to show that his date of birth was 19.10.1958 instead of 26.12.1956. It is clear that after applicant has got Birth Certificate dated 23.04.2008, he has made a request to respondents to change his date of birth on 05.09.2008. Also from the annexures annexed by the applicant to the OA, the birth certificates of his other 12 OA No. 283/2016 brothers and sisters are also found to be of the year 2008. Thus, from the available material placed before us, it is clear that the applicant does not fulfill the conditions as mentioned above in clause (a) & (b). Accordingly, we find the action of the respondents to be just, legal as per the provisions of rules on the subject.
13. Coming to the grounds raised by the applicant, we do not agree with the same as we do not find them to be sustainable in the eyes of law in view of the observations made by us in the above paragraph(s) that he is legally entitled to be retired from service on the basis of his date of birth i.e. 26.12.1956 and not 19.10.1958, though his birth certificate may have been issued by the State of Haryana as it is the applicant, who himself has provided his Matriculation Examination Certificate of Board of Secondary Education, Haryana at the time of entry in service wherein his date of birth is mentioned as 26.12.1956 and he has himself put his signature on the service records. Also the representation made by the applicant for the first time in the year 2008 has been duly replied by the respondents as per rules and provisions on the subject. Therefore, we cannot agree 13 OA No. 283/2016 with the ground raised by the applicant that birth certificate issued by competent authority is a vital document and so the authorities are required to change his date of birth on the basis of the same. But as observed by us in para 12 above, the birth certificate cannot be accepted as a matter of right for change of date of birth in service records.
14. Coming to the judgment passed by the Hon'ble Supreme Court in the case of CIDCO vs. Vasudha Gorakhnath Mandevlekar (supra) as well as judgment passed by Hon'ble Bombay High Court in the case of Smt. Vasudha Gorakhnath Mandvilkar vs. The City and Industrial Development Corporation of Maharashtra Ltd. (supra), relied upon by the applicant, we do not agree with the same, since in the said case, several office records categorically showed the correct date of birth and there were large number of documents produced in support of the said contention be it gradation list, seniority list as well as the retirement list of CIDCO employees. In the present case except the Birth Certificate dated 23.04.2008, there was no single document ever produced by the applicant in support of his contention. Also the birth certificate issued in 14 OA No. 283/2016 the year 2008 neither showed his name nor showed the name of his mother.
15. On the other hand, we agree with the judgment(s) relied upon by the respondents. The Hon'ble Apex Court in the case of State of M.P. & Ors. vs. Premlal Shrivas (supra) has held as under: -
"9. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag-end of his career, the Court or the Tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless, the Court or the Tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the Court or the Tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No Court or the Tribunal can come to the aid of those who sleep over their rights (See: Union of India Vs. Harnam Singh)."
In the case of Union of India vs. Harnam Singh, reported in AIR 1993 SC 1367, the Hon'ble Apex Court has held as under: -
"6. A Government servant, after entry into service, acquires the right to continue in service till the age of 15 OA No. 283/2016 retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is 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 and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or stale claims, is generally applied by the courts and tribunals. It is nonetheless competent for the Government to fix a time- limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. ................."
Also in the case of Factory Manager Kirloskar Brothers Ltd. vs. Laxman (supra), the Hon'ble Apex Court has held as under: -
5. The affidavit filed by the employee indicated that he was well aware that his date of birth had not been corrected by the employer on the basis of representation that was allegedly filed in the year 16 OA No. 283/2016 2003. Thus, it was not open to him to have waited for ten years i.e. till his date of retirement and to file a representation again and to approach the Labour Court. He slept over his right and it is also doubtful whether he had submitted representation. Even if he has submitted his representation, he could not have waited for ten years for seeking correction in the date of birth after his retirement. A perusal of the record also indicated that once the respondent himself had declared his date of birth as 01.01.1956.
There is no document in service book indicating that he has ever declared his date of birth as 01.12.1956."
16. Thus, in view of the discussions and observations made hereinabove, it is clear that impugned order dated 04.08.2014, (Annexure A/1), qua the applicant and order dated 18.03.2016, (Annexure A/2), in challenge do not require any interference by this Tribunal as we find the action of the respondents to be just and legal and as per the rules governing the subject. The Original Application being devoid of any merit deserves to be dismissed. Accordingly, Original Application is dismissed being devoid of any merit. No order as to costs.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/