Central Administrative Tribunal - Mumbai
Smita Uday Kocharekar vs M/O Railways on 4 January, 2019
SESE SN SEER SENS TRE SE L OB ANe.634/2015 -
CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAL BENCH, CAMP AT NAGPUR ORIGINAL APPLICATION No.210/00634/2015 Dated this Friday the 4" day of January, 2019 CORAM: HON'BLE DR.BHAG WAN SAHAL MEMBER (ADMINISTRATIVE) HON'BLE SHRI R.N, SINGH, MEMBER GUDICIAL) Mrs. Sniita Uday Rocharekar, Wife of Uday Raghunath Rocharekar, _ Occupation : Nil, residing at 'A' Block, 507, Room No.1014, Near Saraswati Apartment, Station Road, Uthasnagar 421004. . .« Applicant (By Advocate Shri A.A. Kocharekar) @ Versus
1. Union of India, The Chairman, Railway Recruitment Cell, Central Railway, Chief Project Manager (Conversion)'s 1" Floor, Buildings Goods Shed, Wadibunder, (Near Sandhurst Railway Station), P.D' Mello Road, Mumbai 400 010.
2. The Assistant Personnel Officer (Recruitment), Railway Recruitment Cell, Central Railway, Wadi Bunder, Chief Project Manager (Conversion)'s Building, oo Goods Shed, Wadibunder, (Near Sandhurst Railway Station), P.D' Mello Road, Mumbai 400 010.
®
3. Senior Personnel Officer (Recruitment), Railway Recruitment Cell, Central Railway, Wadi Bunder, Chief Project Manager (Conversion)'s Building, Goods Shed, Wadibunder, (Near Sandhurst Railway Station), | P.D' Mello Road, Mumbai 400 010. » Respondents ( By Advocate Shri R.R.Shetty) Order reserved on : 29.11.2018 Order delivered on : 04.01.2019 QERDER -
. Per: Dr. Bhagwan Sahai, Member (Administrative) Smt. Smita Uday Kocharekar has filed this OA seeking i-
3 OA No.634/2015(13 declaration that the imougned letter {3 ay, ee c dated 23.07.2018 of respondent No.3 ive. senior Personnel Officer (Recruitment), the Railway Recruitment Cell, Cantral Rallway, Wadi Bunder, Mumbai rejecting her date of birth as per the Birth Certificate issued by the Sub Registrar, Municipal Corporation of fede rts is Greater Mumba t {BMC} instead Certificate issued by the Mahar ashtra State Board of Secondary and Higher Secandary Education for proof of her age; and {i} with direction to the re © Spondents to accept the Birth Certificate issued by BNC as the correct proof of agé and' thereby to appoint the applicant against Group 'D! post as per the Advertisemant No.E~1/2007 issued by {% the Railway Recruitment Cell, Wadi Bunder, Mumbai .
a Summarized facts of the case:
Zia). The respondent No.2 i.e. Assistant Personnel Officer (Recruitment) Railway RecruLtment Cell, Central Railway, Wadi Bunder, Mumbai had issued Advertisement No. E+ 1/2007 for recruitment to the post of Group ves SC Cc OA No 64/2078 3 2(b). The applicant applied for that post under OBC Category mentioning her date of birth as 20.07.1972 in the application form.
Along with the application form, she enclosed a copy of Birth Certificate issued by Sub Regis strar, BMC mentioning her date of birth as 20.07.1872 as Well as a copy of the sc Examination Certificate which -mentionad her date of birth as 02.02.1971.
z2{a). Based om her application, she was asked for submission of documents for oy tf verification at the office of respondent No.2 on 30.12.2011. The a: apgticant ens aiss called fox 400 meters running test an 23.04.2011 and she passed that test. She was also called for a written examination on b6.20. 2011 and she also passed it by obtaining 683.338 marks against the cut off marks of category. Along with other documents, the applicant alsa submitted her Marriage Certificate and Non Creamy Layer Certificate. Thereafter, the applicant was also called for ledical Examination at Kalyan Railway Hospite re '4 OA No.634/2015 on 09.02.2012, based 6 which she was lesued 3 Physical Fitness Certificate on the same day. Thereafter, the applicant did not receive any communication from the respondent No.?.
2(d). Under the provisions of Right to information Act, she submitted application to APIO on 30.09.2014, to which she received a reply on 28.10.2014 communicating the decision that the date of birth of the applicant shown in the SSCE Certificate is 02.02.1971 and therefore, she doses mot fulfil the age norms applicable for OBC candidates, she is over aged and therefore, she was "not considered or appointment to the Group '5' post.
2{e2). The applicant filed OA No.46 of 2015 before this Tribunal challenging the communicatio of S8.10.2014 from "the respondent Now? This iss) OA was heard oon admission on 10.06.2015 and was disposed of with liberty to the applicant te submit oa representation within a period of three weeks and Airected th Er such representation and pass thereon a reasoned order within four weeks. In case the Be respondent No.2 to considar:
5 | OA No.634/2015grievance of the applicant still "persisted, she was allowed to approach this Tribunal again. | 2(f). Thereafter, the applicant made representation to the respondent Nowe requesting ror revocation / cancellation of the decision te accept the date of birth of the applicant as given in the SSCE Certificate and to accept her date of birth as 20.07.1972 Spe as given in the Birth Certificate issued hy Sub Registrar, BMC and then appoint her against the Group '"D' post under the Central Railway. Along with this representation, the applicant also annexed a copy of her PAN Card issued by the Income Tax Department, which also mentions her date of birth as 80.07.1972. efgq). in her representation, she also cited some case laws in support of her claim such as -
(23 Supreme Court decisions in case of Narinder Kaur Vs. Punjab and Haryana High ih ch fect yo am cone Scie tine.
ta ees feud ound foot Bet Court and others, reporte gn ar Sy and os oF 3 Bombay High Court decision in case of wees, eee pe * Nene & QA No.634/2015 bene).
ce OH my ah a i » cy fas tt:
het oe wi fea Vasudha Gorakhnath Mancdvilke Industrial Development Corporation {CITbca), reported in (3) 2008 (5) Mhib.d. 1a4?.
2th). The respondent No.3 bee. Senior seat Personnel officer (Recruitment), Railw pea) hg a ed | ct wm her Recruitment Cell, Central Ratiway rejer representation on 23.07.2015. This rejection een challenged in oy o£ her representation has this OA.
3. Contention of the parties:
The applicant and her counsel have contended phat -
3fa). the respondents accepted the date of birth of the applicant as given in her Birth Certificate of BMC as 20.07.1972 and based on that she was called for further stages in theE recruitment process such as verification. of the documents, running test, medical .
examination efc. The xespondents have erred ant*'s date of birth in not accepting th if appli:
tf u2 as given in the Birth Cerbificate issued by the Sub Registrar, BMC as correct proaf of age and instead have wrongly relied only on the date of birth mentioned in the SSCE @ ny the Munictpa 7 OA No.634/2015 Certificate issued by Mahar rashtra Secondary and Higher Secondary Education Board, in Pune;
3d). the claim of the tespondents is not correct to the effect that they had the right of 2 rectify discrepancy detecte edo oat any stage 1S rh the recruitment process and the applicant was not called for further stages of the recruitment precess when discrepancy in the date of birth ee by her was found i.e. she has aubmitted two certificates for her proof of age. The First certificate issued by lathe of i MK Sub Registrar, SMC mentioning her birth as 20.07.1972 and SSCE Certificate issued hy Maharas htra State Secondary and Higher Secondary Education Board, Fune mentioning her date of birth as G2.02.1971.
The respondents should have appreciated that the date of birth of ag applicant mentioned in the SSCE Board Certificate is by mistake and therefore, it should not be relied upon;
3a). the respondents have failed Lo appreciate that the Birth Certificate issued ee cS t ie 7 ba je or Ce
52) my?
pt {3 s OG ie B probative value than the SSCE Board s OA No.634/2015 Certificate regarding the date of birth and further the date of birth issued by the Municipal Authorities has a px umptive value about correctness of the date of birth as it has been issued by a public authority while discharging public duty;
3 fd). the respondents have failed to appreciate that. whenever there is a variance in the date of birth in Birth Certificates © | Aissued by Municipal Authorities and the Certificate issued by any other authority, the qdate oof birth reeerded din the Births and Authority should be Frapt a S 2 a a mB cr By B E as) 3 Sy i Deaths accepted;
3fe). reliance of the respondents only on the SSCE Board Certificate for proof of date @ Of birth of the applicant is not correct because the date entered in the SSCE. Roard Certificate was through oversight and mistake of the guardian of the applicant. This view has alsa been upheld in the case laws cited by the applicar t in her representation made to.
'A the respondents. in view of this, the rh p impugned decision of respondents is wrong, SRE 9 OA No.634/2005 illegal and therefore should be set aside;
3S). the applicant had submitted the ORC Non Creamy Layer Certificate in Central Government format only as prescribed in the Notification No.E+1/2007 dated 17.05.2007 and the contention of the respondents is wreang that one of the reasons for rejecting the applicant's representation was non~submiss Lon of the Non-Creamy Layer Certificate in the Central Government format;
3{q). the contention of the respondents that the Railway Recruitment Cell could reject the application of the applicant for non~ fulfilling the eligibility f requisite criteria at any stage of the recrudtment process and if a candidate is erroneously appointed; such candidate should be summarily removed from Sérvice is noh correct;
3th) . the case law cited by the respondents in their support is totally different and is not helpful to the respondents. The applicant will deal with the said Supreme Court order with true and correct interpretation at the time of hearing of the OA. {though nothing 10 © OANG.634/2015 was done in this regard and no such interpretation was presented during the hearing};
3a). aiso in the advertisement issued by a a the respondents, there was mention of the wo:
H ee So 'copies' of the Certificates in eqa Educational qualification, proof of aga, Certificate, etc and therefore, the Was right in submitting two certificates of her date of birth and the applican has not vieclated any of the recruitment rules;
3{j). the claim of the respondents that the applicant had bean called inadvertently for certain stages of recruitment process is not correct. They had allowed the applicant only atter verification of her documents: and based i on her correct date of birth given in the certificate of the Sub Registrar, BMC, Therefore, The respondents ntended that -
3k). the Notittecation No.E-L/2007 issued on 17,05,2007 inviting applications for the vacant Group ain Para No.8.iG, sub para (ii), it was specifically mentioned tha MASE o il DA No.634/2015 in case of SC/SP/OB AC candidates, a certificate of the appropriate authority, for their belonging to SC/ST/ORC categories should be submitted in Central Government format" and subsequently as per sub para {IV}, it was specified that 'attested cupy of only ane educational qualification certificate containing proof of age should be enclosed along with the application form or the said application will be treated.
as invalid application." The applicant in her application form declared her date of birth as 20.07.2972 bub in its support she has enclosed the copy of SSCE Certificate in which her date of birth was mentioned as O2.02.1971, and alse the coaepy of Ehe Birth Certificate dated fete LO.11,1991 issued by Sub Registrar, BMC in which her date of birth was recorded is as 20.07.1372;
32). At the time of document verification, the applicant had not submitted Non Creamy Layer Certificate in Central Government format. as it was clear from hex undertaking given on SQ.12.2011 and therefore, she was rightly treated as general category.
3 fm). By doing this, i-e. by submitting two OA Ne.b34:2015 ry date of birth having twa certificates oof different dates, and OBC Certificate not in Central Government format, the applicant violated the instructions of the Employment Notice / Notification No.i/2 She also Violated the instruction in para No.10.6 tha before applying te t po the candidate 7 she fulfils the criteria. The RRC éf CR reject the application of non-fulfilling the et requisite criteria at any stage of recruitment a7 and if erroneously appointed such candidates summarily removed from service; a(n). in pursuance to Rallway Recruitment Cell received applications, eut of which 1,55,1893 applications came to he rejected. Tn the x uitment process inves ving - such large number of candidates, some errors in deciding the eligibility Of nhe candidates are inevitabie. Therefore, aven LE some shal1l© is OA No.634/2015 error gets detected after rechecking / re- verification, eorrective action is taken as has happened in the case of the applicant whose applicati lor came to be accepted by "mistake and she was allowed to take the running test and medical examination;
3f{o). but this mistake was detected at a 4 Soe ae eg Kee | ot a - Tay ek eae oua r, Xen Later stage, in the Supreme Court. view in the decision dated 08.10.2014 in Unien of India and Another Vs. Sarwan Ram and Another, Civil Appeal No.9388 of 2014 arising out of SLP (©) No.706 of 2014, it has been held that 'the: sonditions mentioned in the Employment Notification are mandatory and ' therefors, they have to be followed by the applicant while applying in pursuance to the said Empicyment Netification {page 121 to 3i{p}. based on the above Supreme Court decision, Railway Board, Ministry of Railways, Government of India, has circulated its capy for information and record to all the General Managers of sonal Reilways and Chairman of the Recruitment Board. The issue involved in the present OA is not one of the change of date of 44 OA No.§34/2015 birth after joining service by the applicant wo ait which cannot be violated by the in case a candidate violates any of the rules ar procedures an terms of supplying information in the application, the candidature is likely to be rejected;
Je the SSCE fe 3 tq). Certificate was tasued to by the present applicant on 29.06.1991 the certificates of birth date From the Sub-Registrar, BMC were subsequent.
dates i.e. first it and then she obtained another certificate from the same authority on 19.05.2018. In view of facts and settled law, the OA be
4. Analysis and conclusions:
We have perused the OA memo and its atinewes, rejoinder filed by the applicant, reply and sur-rejoinder filed by the respondents and considered the rguments advanced by the carties during the hearing on we concluds SSE A 1S , OANo.634/2015 afa)}. In her application for the advertized vacancy, as proof of age, the applicant had submitted two decuments i.e. @ copy of the SSCE Certificate issued by the Maharashtra : in 7 ¥ State Secondary and Higher Secondary Board on
- i 29.06.1951 mentioning the date of birth of the applicant as 02.02.1971 and a copy of the Birth Certificates issued by the . Sub.
Registrar, BMC on 19.17.1991 and also on 19.05.2015 mentioning her date of birth as 20.07.1972.
4(b). The stipulation under the Advertisement i Employment Notification No.1/2007 dated 17.05.2007 was to submit at tested capy of ently one educational qualification certificate containing proof of age. Tn spite of this clear stipulation, why. the appl deant submitted two cer rt tificates for proof of her age is not Ch fet & Qo FY bef oT.
CF & erteiniy creates doubt about genuineness of her date of birth mentioned in one of the two rtificates. As it is clear fromthe date of birth mentioned, the wry oe te Ceartificate was issued earlier LG. on 29.06.19 i Sl subsequently the applicant obtained 16 OA No.634018 another Birth Certificate from the BMC AUCHOrLty irst on 19.11.1991 and then again on 19.05.2015. why even thess hwo rt rr be fo fet 1 ray ct it £3) mo ey < @ rer et a we Cer obtained by the applicant from the Municipal Authority is not CF ce clear, Because in k certificate is issued only once and in case the applicant happens to lese it, the normal prachice such certificate at a latest stage is issued onl Ly.
as duplicate copy of the original certificate. The applicant has not mentioned any reason 4s to why she obtained the Birth Certificates From the Munic ipa authorities subsequently ts6 the SSC Certificate and that too twice.
a€ic). The contention of the respondents in this regard is correct that normally the Birth Certificate from a Municipal Corporation or Village Panchayat anther ity is 'obtained somehime after the birth of a child to use it fete at the time of admission in Schools. But here strangely enough, the applicant after having . ae ~ 9 Rh ped eo a ey gs =A a eos ee a studied up to 10° Class, at the final stage of SSS SSS ° t? OA Na 634) 20TS 2 as O7.02.1971, and after getting the Sch Certificate issued in June, 1991, she again obtained the Birth Certificate rom the BMC anthority twice in November 1931 and May 2015. tf she had any reservation about correctness of her date of birth mentioned in the SSCE Certificate, she ought to have applied ta the SSCE Board for necessary correction of her date of birth in os wt nk ~ . vo ee that SSCE Certificate. Bub she did net ds cr ees a t+ i?) oS o Kn ee Pa
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ved cy Be) a cca 4 Oa ie vA . ont £4 aged a 3) 4 ob ® 8 GC om & mpm om ou Ge Ba ts 'A eg ay oN e see fed @ % a ay em mn wi 6 tt ie "as i oor ad ' 43 4 C2 os a "nd be £3 pod "04 a be = eG a mag 4 be a 4 hs o ae rg ed x a 4 oe i ity i m3 as rs ve ") a cs oy a fy ¢ ops oo + rd i oy greed i? iy pad a oa so Cha Eh i Eg 4 ha 4 Q * iD a oe Q @ Q fe eed gg Ss Qed Got ae at tO w os uy @ o 0 43 o i = & eo 8 «a fe eh So Bf Mm G42 ne) ve ® QO ot i Cell, ent hime Reorul ce H te arnt ° gn 1 om y age BQ x £Qe aa Per "5, 19 | OA Nowd34/2015 Central Rallway, Wadi Bunder, Mumbai dated 23.07.2015 to the applicant has clearly brought out the reasons and justification for ejecting her request for net accepting her date of birth ats recorded in the SSCE Certificates submitted by herself with the application form is correct. The applicant © has -- miserably failed to justify any infirmity é flaw in the impugned order of the respondents. Hence, the OA fails, S. Decision :
Q. eS 3 & is] Ch @ by oy Ww et o The OF is dismisses
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(RN. Singh) --_ (Dr. Bhagwan Sahai) ' Member (Judicial) Member (Administrative) img * f wr et aed ye