Full Judgment Text
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PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
KANTILAL HEMATRAM PANDYA
DATE OF JUDGMENT14/02/1995
BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
MUKHERJEE M.K. (J)
CITATION:
1995 AIR 1349 1995 SCC (3) 17
JT 1995 (2) 365 1995 SCALE (1)708
ACT:
HEADNOTE:
JUDGMENT:
1. Leave granted.
2. The respondent entered Railway service on 1.7.1955
giving his date of birth as 6.9.1930 at the time of entry
into the service. That date of birth was entered in his
service record. On the basis of the said date of birth, the
Railway Administration issued order on 5.2.1988/8.3.1988 for
the retirement of the respondent w.e.f. 30th September,
1988, on attaining the age of 58 years. The respondent
protested. According to him, his correct date of birth was
4.9.1934 and not 6.9.1930 and he was liable to be retired
from service only on 30th September 1992. The order of the
Railway Administration directing retirement of the
respondent with effect from 30th September, 1988 was
challenged by him through OA No. 283/87 before the Central
Administrative Tribunal, Ahemadabad. By its order dated
26.8.1988 the Tribunal partly allowed the application di-
recting as under:
"The decision dated 5th February, 1988 of the
Competent authority communicated to the
petitioner under letter dated 8.3.1988 is
hereby quashed and set aside. It is directed
that either the general Manager or his
delegate C.P.O. of the respondent Railway
Administration shall inform the petitioner at
the earliest about the documents with a copy
thereof, on which reliance is sought by the
Railway Administration for arriving at a
correct decision for his D.O.B. and permit the
petitioner to produce relevant documents in
support of his claim and decide the same
within 6 months from the date of this order by
a speaking order after giving the petitioner a
personal hearing in the light of the ob-
servations made herein above and in accordance
with law. I have no doubt that the competent
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authority will decide the
matter afresh, without being influenced by
the orders passed earlier. It is further
ordered that in case the petitioner’s claim
for correction of birth date is established
367
the competent authority will give effect to such corrected
birth date by giving all consequential benefits on the basis
thereof
3. In obedience to the aforesaid directions, the C.P.O. of
Railway Administration held an enquiry into the claim of the
respondent regarding his date of birth. Parties were
directed to produce their evidence and were also heard. The
Railway Administration in the course of the enquiry by the
C.P.O. relied upon various documents including the option
forms dated 16th September, 1960 and 20th February, 1980,
wherein the respondent had given his date of birth as
6.9.1930 as well as the Provident Fund withdrawal form filed
on 20.2.1980 in which again the date of birth had been shown
by the respondent as 6.9.1930. It was also noticed that the
respondent had not availed of the opportunity given by the
Railway Board in 1972 asking all the literate employees
serving with the Railways to submit their representations if
any, in case, they wanted any correction or alteration in
their recorded date of birth, latest upto 31.7.1973. It was
found that the respondent had made a representation for the
first time on 25.12.1985 and then on 12.3.1987 seeking an
alteration of his date of birth and claiming his date of
birth to be 4.9.1934. The respondent produced copies of
school leaving certificates, issued in 1988, in support of
his claim that his date of birth was 4.9.1934. The C.P.O.
after analysing the evidence and the material on the record
and hearing the parties rejected the claim of the respondent
for the alteration of his date of birth from 6.9.1930 to
4.9.1934 vide order dated 24.1.1989. Aggrieved by the
aforesaid decision, the respondent once again moved an
application before the Tribunal challenging the order dated
24.1.1989.By its impugned order dated 30th September, 1993,
the Tribunal allowed the application and quashed the order
dated 24.1.1989. and directed the Railway Administration to
alter the, date of birth of the respondent in his service
records from 6.9.1930 to 4.9.1934 and since, the respondent
had already retired from service on 30.9.1988, the Tribunal
directed that the respondent be treated as if he had
continued in service from 1.10.1988 till 30.9.1992 and on
that basis be given all the consequential benefits including
the pay and allowances. The Tribunal took the view that
even though vide its earlier order of 26.8.1988 the C.P.O.
had been directed to pass a speaking order after giving an
opportunity to the respondent to produce his evidence and
considering the same, the C.P.0, had not complied with the
order in its correct perspective. The Tribunal found fault
with the opinion of the C.P.O. that since the respondent had
not availed of the final opportunity, provided by the Board
asking all the literate employees to submit their
representations if any, for correction of their recorded
date of birth latest by 31.7.1993, therefore his belated
claim for correction of his date of birth suffered from the
vice of laches. The Tribunal relied upon a Full Bench judg-
ment of the Tribunal in T.A. No. 1104/86 and 1089/86,
wherein it had been held that the Railway Board’s letter No.
E(NG) ii70-BR/1 dated 4.8.1972, prescribing 31.7.1973 as the
last date for making representation, for effecting the
change of date of birth, did not have the force of law and
that an application by a railway employee for correction of
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his date of birth, could not be rejected on the ground that
it had not been made before the last date prescribed in the
Railway Board’s letter dated 4.8.1972.
4. Learned counsel for the appellant
368
while assailing the impugned order of the Tribunal submitted
that it had labored unnecessarily to get out of the binding
judgment of this Court in Union of India v. Harnam Singh 1
993 (2) SCC, 1621 which was fully attracted to the facts and
circumstances of the case. Learned counsel submitted that
the date of birth which had been recorded in the service
record of the respondent was 6.9.1930 and that till almost
the eve of his retirement, the respondent took no steps to
have the recorded date of birth altered, even though
opportunity had been granted to all literate employees of
the Railways to have their date of birth altered, in case
the same had been recorded wrongly, till 31.7.1993 and as
such, the Tribunal should have refused the alteration of the
date of birth of the appellant, which had been claimed after
an inordinate and unexplained long delay of more than
quarter of a century.
5. In Union of India v. Harnam Singh (supra) this Court
opined that:
"A Government servant, after entering into
service acquires the right retirement, as
fixed by the State in exercise if 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 this 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 a
n
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
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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."
6. The Tribunal noticed the judgment rendered by this
Court in Harnam Singh’s case (supra) but curiously failed to
follow it observing:
"Although the respondents neither quoted in
the reply nor took the opportunity of bringing
the case to our notice. We are bound to
respect the ratio of the latest Supreme Court
judgment in Union of India and Ors. v.
Harnamsingh, (1992 SC (L & S) - 375), in the
matter of date of birth and which over rules
CAT Full bench decision in Darshansingh’s
case. That case which related to
interpretation
369
of Note No. 5 to FR-56 (M) which was
incorporated only in 1979 provided for request
to be made for correction of date of birth
within five years from the date of entry in to
service. The Hon’ble Supreme Court held that
in case of Government servants who entered
service prior to 1979, it will be appropriate
and in tune with harmonious construction to be
held that they may seek the correction of date
of birth after 1979, but in any event not
later than 5 years after coming into force of
the amendment in 1979. The Supreme Court also
observed that Darshansingh’s case was
distinguished by the fact that Shri
Darshansingh had not been shown the service
book even once during his entire service. The
Supreme Court also referred to the General
rule that in the absence of date of birth the
general principle of refusing relief on the
ground of laches and stale claim is generally
applied by the Courts and Tribunals
We are bound by Supreme Court’s decision in
Harnamsingh’s case but in view of the special
features of the instant case, we hold that we
are required to consider the case on merits
The approach of the Tribunal is patently objectionable and
does not commend to us. It attempted to circumvent the law
laid down by this Court on untenable reasons by stating that
"we are required to consider the case on merits" without in
fact so considering. The law laid down by this Court is
binding on all courts and tribunals. Indeed, the law as
declared by this Court has to be applied to the facts of a
given case and not applied mechanically but we find that in
the present case the facts were so eloquent that no scope
was available with the Tribunal to get over the opinion
expressed by this Court in Harnam Singh’s case (supra) and
on the facts as established on the record the Tribunal had
no option but to refuse relief to the respondent.
7. From a perusal of the record we find that, after
joining the service in 1955, the respondent had himself in
1960 as well as in 1980 mentioned his date of birth as
6.9.1930 (as had been recorded on the first sheet of his
service record) on various documents including the Provident
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Fund withdrawal form dated 20.2.1980. No explanation,
muchless a satisfactory explanation, has been furnished by
the respondent as to why he mentioned the date of birth as
late as 20.2.1980 in the Provident Fund withdrawal form, as
6.9.1930 if he was already in possession of such evidence
which showed his date of birth as 4.9.1934.
8. On 25.12.1985, for the first time, three decades after
the respondent had entered into service, did the
respondent make an application for correction of his date of
birth without adducing any reliable documentary evidence in
support of its claim and without in any manner explaining as
to why the respondent had taken no action for all those
thirty years. In the enquiry held by the C.P.O., consequent
upon the remand of the case, the respondent relied upon
three school leaving certificates procured belatedly and
containing contradictory assertions. In this connection, it
may be noticed that one of the school leaving certificate
produced by the respondent shows that he was admitted to the
school on 23.4.1949 and had left the school on 12.1.1950,
without even completing one academic year of study, The
respondent, on the basis of the above certificate, would
appear to have joined the school in midsession and left the
school again in midsession. Before the C.P.O., the respon-
dent contended that he had to withdraw from the school on
account of the death
370
of his father but curiously the Certificate records that he
was leaving the school to study in some other school. That
apart, the basis on which the entry of date of birth was
made in that certificate has not been disclosed. This
certificate was produced before the Tribunal also. The copy
of the other School Leaving Certificate which was produced
by the respondent during the enquiry by the C.P.O. and was
also produced before the Tribunal, issued by the Principal
of the V.C. Techn. High School, a private school, reads as
follows
This is to certify that Shri Kantilal
Hemantram Pandya’s Date of Birth in figures -
4.9.34 (In words) Four September Thirty Four.
This certificate is given as per this School
Register No. JR. NA3716 dated 19.9.1988 on
charging of Rs. 1/- as per rules.
9. A bare or cursory look at the above document shows that
the certificate was issued on 19.9.1988, just a few days
prior to the date of superannuation of the respondent on the
basis of his recorded date of birth and appeared to be a
document brought into existence for the benefit of the
pending proceedings. The C.P.O., therefore, rightly did not
place reliance on the said certificate. The copy of the
certificate, as already noticed had been issued in 1988.
The Tribunal, as a matter of indulgence directed the
respondent on 15.2.1993 to obtain an affidavit from the
Headmaster of the school disclosing the date on which the
original certificate was issued as also why the copy was
issued in 1988, but no such affidavit was produced for
reasons best known to the respondent. Inspite of this
lacuna, the Tribunal erroneously relied upon the said
certificate, the correctness and genuineness of which was
not free from doubt to grant relief to the respondent. The
material on the record established that after filing the
option forms declaring his date of birth as 6.9.1930, in
1960, and after the filing of the Provident Fund withdrawal
form on 20.2.1980, the respondent made his representation
for correction of date of birth in 1985 and 1987 but failed
to substantiate his claim through any reliable and
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trustworthy documentary evidence. He allowed the matter to
rest till he neared the age of superannuation. The
respondent slept over his rights to get the date of birth
altered for more than thirty years and woke up from his deep
slumber on the eve of his retirement only. The law laid
down by this Court in Hamam Singh’s case (supra) was, thus,
fully applicable to the facts and circumstances of the case
of the respondent and the Tribunal failed to follow the same
without even pointing out any distinguishing features on
facts. Stale claims and belated applications for, alter-
ation of the date of birth recorded in the service book at
the time of initial entry, made after unexplained and
inordinate delay, on the eve of retirement, need to be
scrutinized carefully and interference made sparingly and
with circumspection. The approach has to be cautious and
not casual. On facts, the respondent was not entitled to
the relief which the Tribunal granted to him. The order of
the Tribunal is erroneous and the directions issued by it
cannot be sustained. We, accordingly, set aside the order
of the Tribunal and allow this appeal. No costs.
371