Dock Labour Board. Vs. E. Atchanna & Ors  INSC 170 (1 February 1996)
G.T. (J) Nanavati G.T. (J) Agrawal, S.C.
(J) Nanavati. J.
1996 SCC (2) 484 JT 1996 (3) 6 1996 SCALE (1)731
arise out of a common order passed by the Andhra Predesh High court in Writ
appeal Nos.1024. 1025 and 1026 of 1995.
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
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
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.
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.
The Director Health Services is directed to submit a report to this court about
the age of the appellants herein.
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.
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.
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.
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.
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.
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.