Central Administrative Tribunal - Kolkata
Mrityunjoy Ghosh vs N K Sinha on 4 July, 2019
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. ' J 1 CPC. 235 of 2016(OA.1307 of 2015)
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CENTRAL ADMINISTRATIVE TRIBUNAL
CALCUTTA BENCH, KOLKATA
CPC. 235 of 2016
(O.A. 1307 of 2015)
Coram Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
Mrityunjoy Ghosh,
Son of Late Kalipada Ghosh,
Aged about 55 years,
Residing at Village - Sahapur, Telipukur,
Post Office - Nalikul,
District^ooill^^n^JlJAC)?
Affd at'presenf wofking^s Assistant'Library
\\&*Raja Rammohu Roy Librar/FouTidation,
^ ^ ^ Block - Dp -'MvrSeGtpr- I, Salt LalScity,
Kolota-700034 .
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Under the Gpvernment of.India,
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/Ministry of Culture..r *
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502-C, Shastri Bhawan,
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New Delhi - lib 001.
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2. Dr. Arun Kumar Chaknaborty,\^ s / /
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The BireetorGeneral, ^ / t
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Block DD - 34, Sector - 1/
Kolkata - 700 064.
Contemnors/Respondents.
For the applicant Mr. P.C. Das, Counsel
Ms. T. Maity, Counsel
For the respondents Ms. R. Majumder, Counsel
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Reserved on : Q8.Q2-.2019
Date of Order:
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•y 2 CPC. 235 of 2016{OA.1307 of 2015)
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/ ORDER
Per; Bidisha Baneriee. Judicial Member This Tribunal while disposing of the Original Application had discussed the implications of various decision of the Hon'ble Apex Court, threadbare and *:
concluded as under:
"A sum up of legal propositions enumerated hereinabove would be as under:
(1)A Government servant who has declared his age at the initial stage of the employment is-.npt precluded from making a request later on forxb/feition^of his' agef xxx xxx xxx if he is in possessifrtiPf Sri irrefutable proof relriiipgjo his. date of birth as different from the one^earJier recorded and^even if no period of limitation was,prescribed' for seeking correction of dgte of birth, the Govemmeni -servarit niust/ddxo withoutunreasonable ' "delay. (HbrnamSmgrisuprg) / '% ^Unless 0Jear..ca>sefbiritheibpsifo^ whichriqn be held to be conClrisivejririatbfJf^ respondent, the Court or the. Tribunal Jhbuid MoiCffsue a. direction onfthe tiasis of : J materials which^mdke sUch':Cigim,only pTausible (RCffirubakarun supra) ' 1 *~'(3)A TribuhgTpr afioufi rnus%te ifullyr§ti$Jfied that there has been £ ij; real injusticertd trie ptjersbnCorkemedfind his clairrisfg^coflrection can bejmaSei-iri^jiccprdhncb' wjthffhe procedure prescribed and wtthifi.thddme fikrid^byrinyxuie or order".jfi^KirubakaraJi supra) (4) Correction of clate of birth can befalloweti evetipt the fjbg end of servicewhenig^clear case, relatingJo^ate-tif})ii^h is rrjhde out on L the basis'of clinching.materiqls-fKamta Pandey supra) (5) The onus is upon the applicant to prove the. Wrongirecording of his .t date ofbic£h in his service book! S' '(6) The date of birth entered in the-school record is the source of materials for making entry in th'i service records (T.V. Venugopalan supra) (7) Entries in school register and admission form regarding date of birth constitute good proof of age. There is no legal requirement that the public or other official book should be kept only by a public office and all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge off official duty particularly those made 'ante litem motam (Mohinder Singh supra)
6. That apart, it could be noted that in General vs. UOI [(2007) 15 SCC 553] an employee made a representation for change of date of birth on the basis of school certificate within six years his joining the service in 1964 followed by another. It was rejected after 21 years on the ground that 0 7 3 CPC. 235 of 2016(OA.1307 of 2015) •/ correction was sought for at the fag end. Tribunal dismissed.his application on the ground that he approached the Tribunal at the fag end..
Hon'ble Apex Court held in favour of the employee in view of his representation that "he could not said to have not acted diligently."
7. While claim for correction may be defeated by delay (State of Tamil Nadu -vs- T.V. Venugopalan [(1994) 6 SCC 302) this Tribunal cannot lose sight' of the fact that an entry in Municipal Births and Deaths Register prevails over the entry in school register as held in CIDCO -vs- Vasudha Gorakhnath Mandevlekar (2009) 7 SCC 283]
8. The Date of Birth certificate issued by Municipality in terms of entry would be in the nature of a Public, Document in terms of Mohinder Singh (supra) and /?. Jayalakshmamma: -vs- Election Tribunal -cum-Senior 1(2004) 5 ALD 525$200k) decided on &'8$f?by HoMble High Court of Andhra Pradesh;), '- \
9. The ^respondents.'hpwever, ]eitefj tf]e~decision of Eastern Coalfields M. &*OrS: -vs-Bairangi Rabidds [2015(ij,SLR 254 SC] wherein it was decideffdtat once$$Jiddt$yaijki fhfbengit bpriot stating ti$e?cdr%ect fact, equitably jurisdiction dhdeh$rticleJ2£§^ should notbe-extended]tc> Wm^^^fernp^JJOr^s^ Ramd'S\vamk& Ors. [1997,(4) SCC 6^]^the^Hon't([€;Ap€j('Cgun^bsem^ that the^fmflingtof the ■ DB of-:the Hon'b1$..High*Cun.thai, fesppn{fents*cp.ul(( not haveSepn Slowed to participate the Matriculation [certificate was omassumption^ghd ahiyecjidt totally beihg$bHyious of 'the*»gtfquiry reporT%hichSrredordedi; tfie statement of the^respqpdents.
Hon'ble Apex CouGttOpfnSH&as^ollowsk ,-47^ . v
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"As js manifest; in the case at hand tb&respondenhstated tfiis on the higher side to gain the advantage of eligibility*po& hence,ltwe have no :trace*gfdoubt thcrFprinciple ofestop'pels would agjyly or^a! fours. It is vvell settled in laW/that jurisdictionofxth&High Cdurt under Article 226 of ihe CoriStitution is 'equitable and discretionary".
And set aside the judgments passed by tfae^Vivision Bench of the Hon'ble High Court. ' ..... •
10. In the aforesaid legal backdrop, it could be noted that in the present case the applicant had not intentionally suppressed the Matriculation Certificate issued in 1976 at the time of his entry into service in 1977. Rather >.
this is a case where the Matriculation certificate of 1976 was corrected on the basis of materialsin 1983, i.e. long after his entry into service, and the applicant had sought for correction of his service record on the basis of "clinching materials" i.e. the corrected educational qualification certificate and therefore the factual matrix of the present case did not fit into that of the decisions cited by the respondents, or all fours."
/ /k_ 4 CPC. 235 of 2016(OA.1307 of 2015)
2. This Tribunal passed its order on 23.6.16 wherein it had specifically noted k' that the date of birth in Matriculation Certificate was corrected in 1983, i.e. long after his entry into Government Service.
3. The speaking order was issued on 28.8.18 i.e. after a delay of more than 2 years. It records as under:
"Note 6 below FR-56 clearly lays down that an alteration of DOB of a Government servant can be made with the sanction of the Ministry or Department, if
(a) A request in this regard is made within five years of his entry in the gbvernmfent service.
(b) It is: clearly established-that a genuine bona fitie mistake has occurred.
(c) The DOB so-altered would/not make^-him ineligible to,appear in . any school or University or l/PSC examination in which he had • appeared'or for entry into'Governfheht:;service bn-the date on : ' which |herTirst.appeared at"Such^examlhation or on the date on 'i which.entered the Government-service. : ' ' l;
Shri.iyirituniov Ghosh applied for correction of bis DOB in the year 2004 which is 28 years after ioinihg the Service.-The West Bengal Board of Secondary Education, had corrected his .DOB on 16.12.1983. So from that date'the application was.made after 21 years had elapsed.
The delay is'clearly.are than five years which i^ th.e^time limit provided in the O.M. quoted imabove Para 9 and 10 and specifically Para (a)fof note 6 of FR-56. Accepting the'request would violate this provision of the rules.
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Hence, i'
It is evident that the request does not fulfil the condition prescribed in Para
(c) of Note 6 of FR-56. Assuming, for the sake of argument that the altered 1 DOB, 02.01.1960 is correct the age of Shri Ghosh at the time of entry into service would have been 16 years 09 months and 03 days. This is far below the prescribed minimum age of 18 years. -Hence para (c) referred above does not permit change of DOB. Therefore the prayer of Shri Mritunjoy r .* Ghosh is rejected on the aforesaid observation and order passed in this regard on dated 21.11.2016 is also withdrawn."
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4. In view of such order although we find no deliberate violation of our y directions but there is definitely an attempt to procastinate, and violate the time / «• r-
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5 CPC. 235 of 2016(OA.1307 of 2015)
limit for issuing the speaking order, which delay is in explicable. Hence, we penalise the respondents with a fine of Rs. 10,000/- to be paid to the petitioner within 4 weeks.
\ . 5. The CPC application is accordingly disposed of.
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(Dr. Nandita Chatterjee) (Bidisha Banerjee)
Administrative Member Judicial Member
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