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2. The facts of this case are rather peculiar. Before we may, therefore, comment and adjudicate upon rival contentions of learned counsel representing the parties, it shall be useful to give resume of facts culminating into filing of the present Application. As per the case set up by the applicant emanating from pleadings made in this and the earlier Application filed by him bearing OA No.2207/2007, and the accompanying documents, insofar as the same relate to the correct date of his birth, the parents of the applicant got married in November, 1949. His elder sister Sheela was born on 21.7.1951 as per the certificate issued by the District Registrar (Births & Deaths), Office of Civil Surgeon, Rohtak, which would show that she was the first child of his parents born at Village Anwal, District Rohtak. The applicant is stated to be the second child born to his parents, and as per the certificate issued by Government Primary School, Anwal, was born on 6.5.1952. The certificate issued by Head Master, Government High School, Lahli (then Government Middle School, Lahli) also mentions his date of birth as 6.5.1952. The certificate issued by the District Education Officer, Rohtak, pertaining to the middle standard examination also mentions his date of birth as 6.5.1952. Younger brother of the applicant was born on 26.11.1955. It has been the case of the applicant before the concerned authorities in representations made by him that once his elder sister was born on 21.7.1951, he could not have been born on 6.5.1948, i.e., earlier to his elder sister. To authenticate that he was actually born on 6.5.1952, the applicant also relied upon initial school certificates up to middle. It is his case that the middle standard examination passed by him was from the State Education Board, and it is not that the certificate regarding that had been issued by the school authorities. It is further the case of the applicant that despite the facts as mentioned above, somehow in the matriculation certificate issued by the Punjab University, his date of birth as 6.5.1948 came to be recorded wrongly, wherein even though, the month and day was correctly recorded, but the year was incorrectly recorded as 1948. As soon as he came to know about the discrepancy in his date of birth so recorded in his matriculation certificate, he moved the Punjab University for correction of his date of birth in the matriculation certificate. A decision was taken in the Syndicate proceedings held on 20.1.1997 to rectify the mistake in his matriculation certificate, and thereafter the said University issued a revised matriculation certificate showing his date of birth as 6.5.1952. The applicant made representation on 28.5.1993 to Chief Secretary, Government of Haryana for rectification of his date of birth. The same was, however, rejected vide letter dated 12.7.1993. However, inasmuch as, by the time the representation aforesaid came to be rejected, and the Punjab University had not corrected his date of birth in the matriculation certificate, on such correction having been made by the University, he made yet another representation dated 27.4.1997, which too came to be rejected vide letter dated 1.7.1997. It has been the case of the applicant that both the orders dated 12.7.1993 and 1.7.1997 had been passed rejecting his representation on the premise that he had taken the advantage of the wrong date of birth recorded as 6.5.1948 by securing employment as Assistant Registrar, cooperative Societies, Haryana, and that had his date of birth been 6.5.1952, he would not have been eligible for securing appointment on the said post. It was further stated in the orders that the applicant had already availed the benefit in the matter of securing government employment on the basis of 6.5.1948 as his date of birth and, therefore, his request for change of date of birth to 6.5.1992 on the basis of the duplicate matriculation issued by Punjab University on 6.2.1997 could not be acceded to. The record, and in particular representation dated nil (Annexure A-4) made by the applicant would reveal that the applicant was not satisfied with the orders referred to above rejecting his two representations, and thus made another representation Annexure A-4, wherein he further stated that the orders passed by the Government proceeded on totally wrong premise that he had taken advantage of his date of birth being 6.5.1948. He stated in the representation that he had not taken any advantage of his wrong date of birth 6.5.1948. The applicant then stated that an advertisement was issued in October, 1972 for holding Haryana Civil Service (Executive Branch) and other allied Services examination in March, 1973. He applied in pursuance of the said advertisement and passed the examination held in June, 1973, and was thereafter called for interview/viva voce test on 7.2.1974. The post of Assistant Registrar, Cooperative Societies was governed at the relevant time by the Punjab State Cooperative Service Class II Rules, 1958. As per rule 6 of the Rules aforesaid which provided for qualifications of candidates by direct appointment, a candidate to be eligible should have attained the age of 21 years and not more than 25 years on the 1st October, preceding the date on which he was to be interviewed by the Commission for appointment to the service. He quoted rule 6 of the said Rules in support of the plea raised by him, as mentioned above. The interview was held on 7.2.1974, and, therefore, the relevant date for calculating the age was to be 1st of October, 1973, and on that date, the applicant pleaded, even taking his date of birth to be 6.5.1952, he would have been more than 21 years of age on the relevant date and would be eligible for appointment as Assistant Registrar. He mentioned that by no stretch of imagination it could be said that he had taken any benefit of the wrong date of birth, i.e., 6.5.1948, and that the reason given in the order rejecting his representation was fallacious. He further stated that as per rule 9 of the said Rules, a candidate selected for direct appointment as Assistant Registrar had to undergo a course of training for two years before being appointed to the Service and would pass such departmental examination as may be prescribed by the Government. After his selection for the said post, the applicant was asked in November, 1974 to undergo training for a period of two years before his appointment. He also stated that the orders rejecting his representations were passed keeping in mind the new Rules of 1997, known as the Haryana State Cooperative (Group B) Service Rules, 1997, according to which no person less than 21 years of age on or before the last date of submission of the application to the Commission, would be appointed to any post in the Service by direct recruitment. He also pleaded that the service rules applicable on the date of issuance of the advertisement and making of the selection alone would be relevant and applicable and any subsequent amendment to the rules could not be taken into consideration. Inasmuch as, the only reason given in the orders rejecting representations of the applicant that he had taken advantage of his wrong date of birth in securing employment with the Government of Haryana was wrong, the applicant prayed that justice be done to him and rectification/correction be made in his date of birth, so as to change it from 6.5.1948 to 6.5.1952. With the representation aforesaid, he annexed various documents, i.e., a certificate showing 21.7.1951 as the date of birth of his elder sister (Annexure-I); school leaving certificate showing his date of birth as 6.5.1952 (Annexure-II); school leaving certificate of middle school; certificate issued by Education Department, Haryana (Annexure-III colly.); corrected matriculation certificate issued by Punjab University (Annexure-VII); and some other certificates. In all the certificates referred to above, his date of birth is mentioned as 6.5.1952. Of course, whereas, his certificates up to middle, which too he passed from the State Education Board, there is no correction and the date of birth recorded is 6.5.1952, in the certificate Annexure-VII issued by the Punjab University, the corrected date of birth is 6.5.1952. The applicant also annexed some other documents pertaining to his taking examination for the post of Assistant Registrar.

5. Insofar as, the service graph of the applicant and the various representations made by him with regard to change in his date of birth, are concerned, it would appear from the pleadings that the applicant had initially applied for the post of Assistant Registrar, Cooperative Societies in the State of Haryana in 1972/1973. He was selected and sent for training. While undergoing training, he applied and was selected for appointment in the Haryana State Civil Service. At the time of appointment in the State Civil Service the date of birth reflected in the matriculation certificate of the applicant, i.e., 6.5.1948, was entered in his service book. The applicant was selected and appointed to the Indian Administrative Service in April, 1993. It is his case that when he came to know about the erroneous recording of his date of birth both in the matriculation certificate as well as in his service book, after collecting irrefutable evidence about his correct date of birth, i.e., 6.5.1952, he applied for correction of the same in official records. First such representation was made by him on 20.5.1993. The same was, however, rejected by the State Government on 12.7.1993. The applicant realized that his date of birth could not be corrected unless he had applied for correction of the same in his matriculation certificate first, and that being so, he applied for correction of his date of birth in the matriculation certificate. On the basis of representation and evidence produced by him, the Punjab University in its Syndicate proceedings dated 20.1.1997 vide para 26 allowed the correction of date of birth from 6.5.1948 to 6.5.1952. After his date of birth was corrected by the University, and a corrected matriculation certificate was issued, he made further representation dated 27.4.1997 to the State of Haryana for correction of his date of birth in official records. This representation was also rejected vide order/letter dated 1.7.1997 holding that since the applicant had taken advantage of his date of birth as 6.5.1948 at the time of initial recruitment as Assistant Registrar, Cooperative Societies, his request for change of date of birth from 6.5.1948 to 6.5.1952 cannot be acceded to. Meanwhile, the Government of India also rejected his representation on the analogy of the State Government, as per their letter dated 9.5.1997. The applicant has given the factual position showing that he had not taken advantage of his wrong date of birth and even if, his date of birth was to be correctly recorded, he would have been within the prescribed age for appointment, but there shall be no need to give detailed facts on that count, as it has been accepted by the State of Haryana that the applicant indeed had not taken any advantage of his wrong date of birth, and even the Government of India has not disputed this factual aspect of the case. Meanwhile, the turn of the applicant for promotion to IAS came. For this purpose, he was required to fill up the requisite proforma giving his particulars as well as his date of birth. It is the case of the applicant that in the said proforma he specifically mentioned that though 6.5.1948 had been reflected as his date of birth in the records of the State Government, the representation regarding correction of date of birth was pending with the State Government. The applicant was selected and appointed to IAS in April, 1993. It is his case that even after his appointment to IAS, he continued to pursue his representation regarding the correct date of birth with the State Government. Thereafter, he made a further comprehensive representation, mention whereof has been made above. This representation was thoroughly examined by the State Government, which found the same to be meritorious with the conclusion that the evidence produced by the applicant for correction of his date of birth was irrefutable. The State Government made recommendation to the Government of India for correction of his date of birth in official records. The State Government could not do the needful itself as by that time, his service record was not in its possession and had instead been sent to the Government of India. The representation of the applicant, despite strong recommendation made by the State Government, vide orders dated 9.10.2007 came to be rejected by the Government of India, thus constraining the applicant to file his first OA No.2207/2007. It is significant to mention that the only ground while rejecting the representation of the applicant was the rigor of rule 16-A of the Rules of 1958. The matter came up before a single Bench of this Tribunal and vide judgment dated 13.3.2008, the OA was partly allowed. Operative part of the order reads, thus:

Despite that, in paragraph 10 of the order, the impugned order was set aside being non-speaking one rejecting the representation of the applicant and it was further observed that plethora of reasons given in the reply would not supplement it. In the ultimate para, it was held that it was a case of non-application of mind in consideration of the case of the applicant for out of turn promotion. The matter was remitted to the respondents to re-consider the case of the applicant for out of turn promotion within a period of two months from the date of receipt of copy of that order. Even though, it may appear, at the first blush, that a finding came to be recorded that it was the case of discrimination as the role played by the applicant was at par with his colleagues who got out of turn promotion, the same, in our view, cannot be termed as conclusive finding. The order, as mentioned above, was set aside on the ground that the order rejecting the representation of the applicant was non-speaking and variety of grounds raised in the counter reply would not cure the same. Further, if the findings were to be conclusive, there was no occasion to remit the matter to the authorities to re-consider the same. Once, it was to be found by the Tribunal that it was indeed a case of invidious discrimination, the role played by the applicant being at par with his colleagues who got out of turn promotion, a direction could well be issued to accord out of turn promotion to the applicant. That apart, if the exercise of comparing the role of the applicant with that of his colleagues was conclusively gone into by the Tribunal, there would have been no need to direct the authorities to do the same exercise again. Even though, therefore, finding with regard to discrimination and the role played by the applicant being at par with his colleagues have been given but the same have to be termed as tentative and not conclusive We are of the considered view that once the matter is remitted for re-consideration by the authorities even though, in the light of observations that may have been made, the said observations have to be termed as tentative and not conclusive. We repeat and reiterate that if the Honble Member had given a conclusive finding, there was no need whatsoever to remit the matter to the authorities concerned. We may also mention that despite the findings given by the Honble Member (J), as relied upon by Shri Behera, when this matter was heard by the Bench presided over by the same Honble Member on 4.12.2008, the matter was ordered to be listed before another Bench in which the Honble presiding Member was not to be a Member, as while sitting single, he had himself taken a different view in Surjit Kaur Sandhu v Union of India & others (OA No.573/2008 decided on 2.4.2008). In the said case even though, it was a case of direct recruitment to IAS and not induction into IAS by promotion, while interpreting rule 16-A it has been held that what would be a bona fide error is an error committed by the respondents officers in recording the declared date of birth by an officer of the civil service but not an error in the matriculation certificate. .Yet it is the date of birth which figured in the certificate appended with the proforma as a proof of date of birth which shall be the only document and material on which the date of birth is to be accepted by the government. Admittedly in the instant case in 1978, when the applicant was inducted into civil service the matriculation certificate shows her date of birth as 25.3.1948 and once accepted, I do not find any bonafide clerical mistake within the meaning of Rule 16-A (4) of the Rules ibid on which a subsequent correction of date of birth in matriculation certificate and alteration is required.

18. In view of the findings as above, there may not be any need to further deal with other issues. However, since an objection with regard to delayed action on the part of the applicant has been raised, it would be appropriate to deal with the same as well. In the very first instance, we may mention that the plea has been raised only during the course of arguments. At no stage, the Central Government thought it expedient to reject the case of the applicant on the basis of delay. Neither in the first order dated 9.10.2007 rejecting the representation of the applicant, nor in the order impugned now in the present OA, there is any mention with regard to delay, and that for that reason, the applicant is not entitled to any relief. In all fairness, we may mention that in the impugned order dated 27.5.2008, while giving narration of facts, it has been mentioned that representation of the applicant dated nil addressed to the State Government was received by the Central Government with the State Governments letter dated 26.6.2007, after a considerable period of time, i.e., about ten years since his last application had been rejected in 1997. However, this observation is not the cause of rejection of the case of the applicant. In the reply filed on behalf of the 1st respondent, there is no plea with regard to the applicant acting late in the matter of correction of his date of birth. Even though, a plea which may arise from the admitted or true facts, can be raised at any stage, but then the affected party has to be given a chance to explain the plea that may be so raised. Coming to the facts of the present case, it is not a case where the applicant hit upon an idea to get a change in his date of birth close to his retirement. It may be recalled that it is the case of the applicant that as soon as he came to know about the discrepancy in his date of birth so recorded in his matriculation certificate, he moved the Punjab University for correction of his date of birth in the matriculation certificate, and decision was taken in the Syndicate proceedings held on 20.1.1997 to rectify the mistake. Even prior thereto, the applicant had made representation 28.5.1993 to the Chief Secretary, Haryana for rectification in his date of birth, which was, however, rejected vide letter dated 12.7.1993. By that time, surely, the Punjab University had not rectified the date of birth in his matriculation certificate. It was done in 1997. The applicant thus moved yet another representation which too was dismissed on 1.7.1997. It may also be recalled that both the representations primarily came to be rejected on the ground that the applicant had taken advantage of his wrong date of birth inasmuch as, if his correct date of birth was to be mentioned, he would not have been able to get the government job at the time when he was appointed as Assistant Registrar, Cooperative Society. Shri Behera, learned counsel representing the applicant, states that there has indeed been delay of ten years in making the third representation in which the State Government came to a definite conclusion on the basis of irrefutable evidence that the applicant was actually born on 6.5.1952 and not on 6.5.1948, but then, had the plea with regard to delay been taken at any stage, the applicant would have explained that he was not aware of the difference in rules applicable when he came to be appointed and the rules on the basis of which it was said that the applicant had taken advantage of his wrong date of birth in securing government employment. He urged that the moment he came to know that there was a marked difference between the two sets of rules referred to above, he made a representation for correction of his date of birth. The applicant is not in the kind of service that he may naturally and in the course of his duties know the rule position, and he made the third representation when after great deal of efforts he was able to trace the rules and find out the difference. It was urged that the applicant had been persistently and tenaciously pursuing his cause and there was a ring of truth in his plea that his date of birth as 6.5.1948 was wrong. Insofar as, the delayed action on the part of the applicant in approaching the Tribunal is concerned, the same has to be straightway rejected. There was no occasion for the applicant to agitate the matter when his first two representations were rejected, as there was no question for him to succeed inasmuch as, the finding recorded in rejecting his representations that he had taken advantage of his wrong date of birth in securing government employment, could not have been set at naught, and any action by the applicant at that stage would have been an exercise in futility. It is only in 2007 when despite recommendations made by the State Government his representation was rejected, that he immediately filed OA No.2207/2007 in this Tribunal, and eversince then he has been pursuing his case. Insofar as, delay in the applicant reacting to get his date of birth changed is concerned, even though, we may find that he moved in the matter quite some time after he was initially appointed in the State Government service, but the same, in any case, was far before his date of retirement, i.e., 15 years. He moved his representation immediately when he was to be inducted into IAS. It is in the year 1993 that he was inducted into IAS, and it is about the same time that he started moving one authority or the other for correction of his date of birth. Present is not a case perhaps which can be rejected on the applicant moving in the matter of correction of his date of birth at a late stage.