Full Judgment Text
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PETITIONER:
VISHAKHAPATANAM DOCK LABOUR BOARD.
Vs.
RESPONDENT:
E. ATCHANNA & ORS.
DATE OF JUDGMENT: 01/02/1996
BENCH:
NANAVATI G.T. (J)
BENCH:
NANAVATI G.T. (J)
AGRAWAL, S.C. (J)
CITATION:
1996 SCC (2) 484 JT 1996 (3) 6
1996 SCALE (1)731
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
NANAVATI. J.
Leave granted.
These appeals arise out of a common order passed by the
Andhra Predesh High court in Writ appeal Nos.1024. 1025 and
1026 of 1995.
Between 1961 and 1969 the respondents entered service
of the appellant as Mazdoors. At the time of their
appointments. the respondents had not produced any proof
regarding their dates of birth. Therefore.their age as could
be ascertained from their appearance. was recorded in their
service books. As the respondents were to attain the age of
superannuation between April and July 1995. intimations were
given to them individually regarding the dates of their
retirement. They made representations to the appellant to
rectify their dates of birth on the basis of certificates
issued by panchayat authorities. Subsequently, they also
requested the appellant to send them to the medical Board
for ascertainment of their age. As the appellant sis not
accede to their requests they filed writ petitions in the
High Court.They prayed for a declaration that they are
entitled to continue in service till they attain the age of
superannuation calculated on the basis of their correct
birth dates.In the alternative. they also prayed that the
appellant be directed to refer them to the medical Board for
ascertainment of their real age and continue them in
accordance with the determination to be made by the
Board.The petitions were heard by a learned Single Judge of
that Court. Be only doubted the veracity of the certificates
produced by the respondents but also held that as the
request for correction of birth dates 30.11.1979 issued by
the Government of India. the appellant was justified in not
entertaining their request. The learned Judge also held that
for that reason. prayer for referring them to the medical
Board also could not be granted. He, therefore. dismissed
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the petitions by his common order dated 27.4.1995.
On 17.7.1995 the respondents preferred writ appeals
before the Division Bench of the High Court. On 10.10.1995
it based an interim order as it was of the opinion that
before making any substantive order it should have an
independent assessment of the age of the appellants before
it. By that order it gave the following directions.
"(1) The Director.Health Services. State of A.P. is
directed to fix a date and accordingly inform the appellants
herein for appearance before him on a Board constituted by
him for determination of their age by such scientific tests
as are available.
(2) appellants accordingly are directed to obtain from
the office of the Director.Health Services information about
the dates fixed for their appearance and appear when
directed to do so by the director.Health Services.
(3) The Director Health Services is directed to submit
a report to this court about the age of the appellants
herein.
All the above must be complied within one month. Post
after one month."
The appellant questions the propriety of passing such
an order at an interlocutory stage. It was submitted that if
this order is not set aside it will cause serious prejudice
to the case of the appellants. On the order hand the learned
counsel for the respondent supported the order on the ground
that earlier also the High Court had in similar matters
passed such orders.
This Court in Union of India vs. darnam Singh 1993 (2)
SCC162 had an occasion to ideal an employee for correction
of date of birth was made only after being notified about
his date of superannuation and within the period of 5 years
from the date of coming into force of the Government of
India’s Notification dated November 30. 1979.In that case
entry into the Government service was in 1956 and the
application for correction of date of birth was made in
1991.This Court observed that inaction of the employee for a
period of birth in service precluded him from showing that
entry of his date of birth in service recorded was not
correct and that Central Administrative Tribunal committed
an error in issuing the direction to correct his date of
birth. This Court has further observed as under.
It is open to a civil servant to claim
correction of date of birth. if he is in
possession of irrefutable proof relating
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 provision in the rules and
correction of date of birth. the general
principle of refusing relief on grounds
of lances 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 an 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
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establish that the recorded date of
birth is clearly erroneous. The law of
limitation may operate harshly out it
has to be applied with all its rigor 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 as superannuation
even if amounts to abridging his right
to continue in service on the basis of
his actual age.
As regards the delay in making applications for
corrections facts of these cases are almost similar to the
facts in Harnam Singh a case (supra). Entry of the
respondents in the service was between 1961 and 1969. After
remaining in service for more than 25 years they applied
for alteration of their birth dates and that too after they
received notices regarding their superannuation. The reason
given by the respondents for alteration of their dates of
birth was that their ages were recorded in the service books
only on the basis of their physical appearance. That may be
set but it was not their presence. Merely because they are
illiterate and had affixed their thumb impressions in the
’service records it is not possible to believe that they did
not know what was recorded therein with respect to their
dates of birth.Moreover,the appellant had issued a Circular
dated 10.7.1967 and it was intimated to all concerned after
Government of India had issued the Notification dated
30.11.1979 prescribing the procedure to be followed for
change of date of birth. It is not in dispute that the
appellant is a Central Government Undertaking and that the
said Notification which is incorporated and as note 5 to
Fundamental Rule 56(m) applies to the respondents.
Therefore,for alteration of their dates of birth the
respondents were required to take steps within 5 years from
the date of coming in to force of the said notification.
Even after the Circular was issued by the appellant. the
respondents did not approach the appellant within reasonable
time. The respondents had sought alteration on the basis of
the certificates which did not provide inrefutable proof as
regards their correct dates of birth. more particularly for
the reasons pointed out by the learn Single judge.without
deciding all the these issues it was not order to give the
impugned directions. the request for referring the
respondents to the medical board was refused by the
appellant. That prayer was also rejected by the learned
Single Judge. Whether that should have been done or not is
itself in issue in the apples. The impugned directions given
at an interlocatory step are very likely to cause serious
prejudice to the appellant’s case.Therefore, these appeals
are allowed and the impugned order dated 10th October. 1995
based in writ Appeals Nos. 1024, 1025 and 1026 of 1995 is
set aside. No order as to costs.