Central Administrative Tribunal - Hyderabad
T Sanjeev Kumar vs M/O Science And Technology on 12 November, 2021
OA No.1034/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH : AT HYDERABAD
OA/021/01034/2015
HYDERABAD, this the 12th day of November, 2021
Hon'ble Mr.B.V. Sudhakar, Admn. Member
T.Sanjeev Kumar S/o T.Prakasa Rao,
Occ : Deputy Surveyor General,
O/o Indian Institute of Surveying And
Mapping (IISM), Survey of India,
Uppal, Hyderabad. ...Applicant
(By Advocate : Mr.J.Sudheer)
Vs.
1.The Secretary, Department of Science & Technology,
New Meharauli Road, New Delhi.
2.The Surveyor General of India, Hathibarkala Estate,
Post Box No.37, Dehra Dun - 248 001,
Uttarakhand. ....Respondents
(By Advocate : Mr.V.Vinod Kumar, Sr. CGSC)
---
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OA No.1034/2015
ORAL ORDER
(As per Hon'ble Mr. B.V.Sudhakar, Admin. Member) Through Video Conferencing:
2. The OA has been filed in regard to the alteration of the Date of Birth of the applicant.
3. Facts of the case are that the applicant was recruited as Dy.
Superintending Surveyor in the respondents organisation in 1990 through the Engineering Service Examination conducted by UPSC. He is presently working as Deputy Surveyor General. The case of the applicant is that his actual date of birth is 11.01.1958 as per the school records of Zilla Parishad High School, Modukuru, Guntur District, AP, where he studied up to 8 th class. He appeared for Matriculation as a private candidate and in the matriculation certificate, his date of birth was wrongly recorded as 27.02.1957, by his father, who is a teacher by profession. Later, when the applicant came to know about his original date of birth as 11.01.1958 through family interactions, he obtained the transfer certificate from the school where he studied and made a representation on 17.10.2013 to the respondents for alteration of date of birth. The same was rejected by the respondents on 15.07.2014 and hence, the OA.
4. The contentions of the applicant are that as a child, he did not know about the intricacies of recording the correct date of birth in official records. It was wrongly recorded while appearing for the Matriculation examination by his father and that it was a clerical mistake. Applicant has one younger brother and two elder brothers. First brother T. Ratna Raju was born in Page 2 of 11 OA No.1034/2015 1954; second brother T. Ravi Vardhan on 07.09.1956. Hence, date of birth of his immediate elder brother being 07.09.1956, the applicant's date of birth shown as 27.02.1957 in official records cannot be possible practically. Therefore, his original date of birth has to be necessarily 11.01.1958. However, he was not aware of the discrepancy in the date of birth recorded. Only during the period of illness to his father in 2010, he came to know about his original date of birth as 11.01.1958. His family comes from a downtrodden background and there is no practice of celebrating birthdays. After his father's death, applicant approached the school authorities and obtained the transfer certificate on 18.04.2013 wherein his date of birth is shown as 11.01.1958. Applicant contends that his claim is genuine and the respondents have not made any enquiries vis-à-vis the veracity of his claim. By virtue of the alteration sought, he would be benefitted by 11 months service only. The rejection was issued by the respondents mechanically. The Tribunal has allowed claims for alternation of date of births of 3 IAS and 1 IPS officer and the orders of the Tribunal when challenged before the Hon'ble High Court, they were dismissed. The 5 years' time limit prescribed by the DOPT is only to check misuse of the provision of alternation of date of birth.
5. The respondents filed reply statement stating that the applicant was appointed as Dy. Superintending Surveyor on 21.06.1990 pursuant to the Engineering Service Examination conducted by UPSC. At the time of recruitment, date of birth of the applicant recorded in the official records was based on his matriculation certificate which is 27.02.1957. The Page 3 of 11 OA No.1034/2015 applicant represented on 17.10.2013 for change of date of birth after 23 years and his request was rejected on 15.07.2014 by relying on Chapter 58 of Section VI Swamy's Complete Manual on Establishment and Administration. Further, Rule 256 of GFR was also followed in rejecting his request. Though the applicant claims that he came to know about his original date of birth at the time of demise of his father in 2010, he only made a representation in 2013. Besides, his father was a teacher and therefore, the applicant hails from an educated family, but not from downtrodden family as claimed by him. Further, the Transfer Certificate has been obtained in the name of Tumati Sanjeeva Prakash, whereas the name of the applicant is Tumati Sanjeev Kumar. As per rules, the applicant cannot seek any relaxation to get his DOB altered.
The applicant filed rejoinder stating that the respondents have admitted the fact that he came to know about his original date of birth in the year 2010. Therefore, within a period of 5 years from 2010, he represented for change of date of birth. As per the observations of the Hon'ble Supreme Court, the cause of action starts from the date of knowledge. Therefore, as he acquired knowledge about his original date of birth in 2010, his application for change of date of birth in 2013 was well within time. Further, after the death of his father, he had to work his way to secure the school certificate, a time consuming exercise and therefore, it took 3 years. Moreover, he did not apply for change of date of birth within 5 years of his entry into service since he was not aware of the correct date of birth. School record indicates his date of birth as 11.01.1958 and that it is not concocted. The respondents cannot raise new grounds in the reply statement other than Page 4 of 11 OA No.1034/2015 those mentioned in the impugned order. Change of name took place while applying for matriculation. However, his father's name and surname remain the same.
The respondents filed additional reply statement wherein they cited the order of the Hon'ble Ahmedabad Bench of this Tribunal in OA 367/2012. As per Rule 256 of GFR, matriculation certificate is prescribed as the documentary evidence for date of birth for the posts for which prescribed qualification is Matriculation or above. The qualification prescribed for the post for which the applicant was appointed is above Matriculation. As such, the date of birth recorded in his matriculation certificate i.e. 27.02.1957 is documented in the service records. He cannot take advantage of transfer certificate issued by school where he studied up to 8th class, that too after 23 years of his entry into service.
6. Heard both sides and perused the material on record.
7. I. The dispute involved is in regard to alteration of date of birth of the applicant. The applicant claims that his original date of birth is 11.01.1958, whereas, in his matriculation certificate by mistake it was recorded as 27.02.1957. Nevertheless, he admitted that on the strength of the matriculation certificate, he competed for the post of Dy. Superintending Surveyor by clearing the Engineering Service Examination conducted by UPSC and was selected in 1990. At the time of his appointment, his date of birth as recorded in the matriculation certificate i.e. 27.02.1957 was noted in the service records. It is the specific contention of the respondents that for the post for which the applicant was selected through UPSC, the prescribed qualification is above Matriculation and Page 5 of 11 OA No.1034/2015 therefore, as per Rule 256 of GFR, the valid document vis-à-vis proof of date of birth is Matriculation certificate. It is common knowledge that for selections made by UPSC, the qualification would always be above Matriculation. Even according to the applicant, the matriculation certificate was rightly taken as valid document for reckoning his date of birth.
II. The feeble submission of the applicant is that he came to know about his correct date of birth in 2010 through his family members and thereafter, obtained TC from the school where he studied up to 8th class. For deciding the date of birth of an employee, Matriculation certificate is crucial for the posts where Matriculation and above is the prescribed qualification, as submitted by the respondents. In the teeth of the said position, the transfer certificate obtained by the applicant of having studied up to 8th class would not be of much help to him.
III. The applicant himself admits that since he was not aware of his original date of birth, he could not seek change of date of birth within 5 years of his entry into service as required under the DOPT OM dt. 16.12.2014. The 3 conditions to be satisfied for permitting change of date of birth as per the said OM are extracted hereunder.
(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 has occurred; and
(c) the date of birth so altered would not make him ineligible to appear in any School or University of Union Public Service Page 6 of 11 OA No.1034/2015 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.
Leaving the genuineness or otherwise of the claim of the applicant aside, the rule regarding making representation for change of date of birth within 5 years was not complied with. Hon'ble Supreme Court in a catena cases, reproduced hereunder, has held that rules are to be followed strictly and any violation has to be curbed and snubbed:
The Hon'ble Supreme Court observation in T.Kannan and ors vs S.K. Nayyar (1991) 1 SCC 544 held that "Action in respect of matters covered by rules should be regulated by rules". Again in Seighal's case (1992) (1) supp 1 SCC 304 the Hon'ble Supreme Court has stated that "Wanton or deliberate deviation in implementation of rules should be curbed and snubbed." In another judgment reported in (2007) 7 SCJ 353 the Hon'ble Apex court held " the court cannot de hors rules".
In view of the above observations of the Hon'ble Apex Court, the respondents cannot entertain any request of the applicant for change of date of birth by bending the rule of applying within 5 years as contained in the DOPT memo cited supra.
IV. Further, Hon'ble Supreme Court in M/S Bharat Coking Coal Limited vs Shyam Kishore Singh on 5 February, 2020 in CIVIL APPEAL NO.1009 OF 2020 (Arising out of SLP (Civil) No.20627 of 2019), relying on its previous judgments has observed that even if the employee were to establish the correct date of birth, nonetheless it cannot be entertained when claimed belatedly and that when not preferred within the time period prescribed by the employer as under:Page 7 of 11 OA No.1034/2015
8. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable. The learned Additional Solicitor General has in that regard relied on the decision in the case of State of Maharashtra and Anr. vs. Gorakhnath Sitaram Kamble & Ors. (2010) 14 SCC 423 wherein a series of the earlier decisions of this Court were taken note and was held as hereunder:
"16. The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri [(2005) 11 SCC 465 : 2006 SCC (L&S) 96]. In this case, this Court has considered a 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 v. Pitamber Dutt Semwal [(2005) 11 SCC 477 : 2006 SCC (L&S) 106] 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.
19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. The relevant portion of the judgment in Home Deptt.v. R. Kirubakaran [1994 Supp (1) SCC 155 :
1994 SCC (L&S) 449 : (1994) 26 ATC 828] reads as under: (SCC pp. 158¬ 59, para 7) "7. 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 their 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.
Before any such direction is issued, the court or the tribunal 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 the time fixed by any rule or order. ... the onus is on the applicant to prove the wrong recording of his date of birth, in his service book."
9. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas, (2011) 9 SCC 664 it is held as hereunder;
"8. 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 Page 8 of 11 OA No.1034/2015 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 v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ).
12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book."
The above judgment squarely applies to the case of the applicant since he sought revision of date of birth after the lapse of more than two decades and not within the time limit prescribed by DOPT in memo dated 16.12.2014. Even if the applicant were to establish his original date of birth, yet the claim for change of birth cannot be entertained after a lapse of 23 years.
V. The further contention of the applicant that his immediate elder brother Sri Tumati Kempu Ravi Vardhan was born on 07.09.1956 and therefore, it was practically not possible for him to have been born on 27.02.1957. Though the Tribunal understands the rationale behind this contention, yet, this is not the forum to certify the veracity of date of birth either of his brother or himself. Further, the rule prescribing time limit of 5 years for seeking date of birth is not to be violated.
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In fact, the Hon'ble Supreme Court has observed in the judgment cited supra that even in cases where it is found that the claim for change of date of birth is genuine, yet the relief cannot be granted at a belated stage for the reason that such reliefs would adversely affect the careers of other employees who are down the line and are awaiting rise in their careers.
VI. The other contention of the applicant that he is only asking for 11 months service by virtue of alteration of date of birth is also not acceptable. It is not the number of months or years that he is going to benefit by change of date of birth that matter, but whether it is in conformity with the rules and law is to be seen.
Another aspect that comes in the way of granting relief is the change of the name of the applicant from Tumati Sanjeeva Kumar to Tumati Sanjeeva Prakash. Change of name has to be done as per the prescribed procedure stipulated by rules/law. The applicant has not filed any supporting material to that effect. His name was changed while appearing for matriculation exam is a difficult proposition for the Tribunal to accept without any material.
Applicant made a general submission that some IAS and IPS officers were granted the relief of change of date of birth without furnishing the required particulars and the required documentary evidence. Hence, this contention too does not have much muscle to be reckoned with for the purpose of furthering the cause of the applicant. Lastly, it is not out place to adduce that the applicant has retired from service, as claimed by the Ld. Respondents counsel and admitted by the Ld. Applicant counsel. Page 10 of 11 OA No.1034/2015
Learned counsel for the applicant made strenuous efforts to persuade the Tribunal to grant relief claiming that the case is genuine. However, since rules and law as pointed out above are not in favour of the applicant, this Tribunal cannot concede to the prayer of the applicant.
Other contentions made by both the parties have been gone into and finding them to be not relevant enough to be dealt with, no comments have been made.
VII. In view of the aforesaid circumstances, the Tribunal finding no merit in the OA, dismisses it, with no order as to costs.
(B.V.SUDHAKAR) ADMINISTRATIVE MEMBER evr Page 11 of 11