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Vishakhapatanam Dock Labour Board. Vs. E. Atchanna & Ors [1996] INSC 170 (1 February 1996)

Nanavati G.T. (J) Nanavati G.T. (J) Agrawal, S.C. (J) Nanavati. J.

CITATION: 1996 SCC (2) 484 JT 1996 (3) 6 1996 SCALE (1)731

ACT:

HEAD NOTE:

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 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 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.

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