Secy.
& Commissioner Vs. R. Kirubakaran [1993] INSC 371 (21 September 1993)
Singh
N.P. (J) Singh N.P. (J) Ahmadi, A.M. (J)
CITATION:
1993 AIR 2647 1994 SCC Supl. (1) 155 JT 1993 (5) 404 1993 SCALE (3)829
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by N.P. SINGH, J.- Leave granted.
2.
This appeal is on behalf of the Commissioner, Home Department, and the Director
General of Police of Tamil Nadu, for setting aside an order dated November 3,
1992 passed by the Tamil Nadu Administrative Tribunal (hereinafter referred to
as "the Tribunal") directing the alteration of the date of birth of
the respondent in the service records.
3. In
the year 1958, the respondent entered in the police service as Sub-Inspector of
Police. In due course, he was promoted to the posts of Inspector of Police,
Deputy Superintendent of Police and Additional Superintendent of Police.
According to the date of birth recorded in his service register, he was to
superannuate on August
8, 1992.
On August 6, 1991, the said respondent filed 157 an
application before the Tribunal for an order to alter his date of birth
recorded as August 9,
1934 to August 9, 1936.
That
application was rejected giving an option to the respondent to approach the
Government under the appropriate service rules. A representation to that effect
was made, which was rejected on April 2, 1992 and copy of the said order was communicated by the Director
General of Police.
Thereafter,
an application was filed before the Tribunal, making prayer for a direction to
alter the date of his birth. On September 9, 1992 the Tribunal passed an interim order directing the
appellants to allow the respondent to continue. Ultimately, by the impugned
order, the Tribunal recorded a finding that the date of birth of the respondent
was August 9, 1936 and he shall superannuate with
reference to that date.
4.
Normally, in public service, with entering into the service, even the date of
exit, which is said as date of superannuation or retirement, is also fixed.
That is why the date of birth is recorded in the relevant register or service
book, relating to the individual concerned. This is the practice prevalent in
all services, because every service has fixed the age of retirement and for
calculating the date of retirement, it is necessary to maintain the date of
birth in the service records. But, of late a trend can be noticed, that many
public servants, on the eve of their retirement raise a dispute about their
dates of birth recorded in the service records, by either invoking the
jurisdiction of the High Courts under Article 226 of the Constitution or by
filing applications before the Administrative Tribunals concerned, for
adjudication as to whether the dates of birth recorded were correct or not.
5.
Most of the States have framed statutory rules or in absence thereof issued
administrative instructions as to how a claim made by a public servant in
respect of correction of his date of birth in the service record is to be dealt
with and what procedure is to be followed. In many such rules a period has been
prescribed within which if any public servant makes any grievance in respect of
error in the recording of his date of birth, the application for that purpose
can be entertained. The sole object of such rules being that any such claim
regarding correction of the date of birth should not be made or entertained
after decades, especially on the eve of superannuation of such public servant.
In the case of State of Assam v. Daksha Prasad Dekal this Court said that the
date of the compulsory retirement "must in our judgment, be determined on
the basis of the service record and not on what the respondent claimed to be
his date of birth, unless the service record is first corrected consistently
with the appropriate procedure". This Court in the case of Government of
A.P. v. M. Hayagreev Sarma2 had occasion to examine the A.P. Public Employment
(Recording and Alteration of Date of Birth) Rules, 1984. The public servant
concerned had claimed correction of his date of birth with reference to the
births and deaths register maintained under the Births, Deaths and Marriages
Registration Act, 1886. The Andhra Pradesh Administrative Tribunal corrected
the date of birth as claimed by the petitioner before the Tribunal, in view of
the entry in the births and deaths register ignoring the rules framed by the
State Government referred to above. This Court said: (SCC p. 685, para 7) 1
(1970) 3 SCC 624 2 (1990) 2 SCC 682: 1990 SCC (L&S) 542: (1990) 13 ATC 713
158 .lm15 "The object underlying Rule 4 is to avoid repeated applications
by a government employee for the correction of his date of birth and with that
end in view it provides that a government servant whose date of birth may have
been recorded in the service register in accordance with the rules applicable
to him and if that entry had become final under the rules prior to the
commencement of 1984 Rules, he will not be entitled for alteration of his date
of birth."
6. In
the case of Executive Engineer v. Rangadhar Mallik3 Rule 65 of the Orissa
General Finance Rules, was examined which provides that representation made for
correction of date of birth near about the time of superannuation shall not be
entertained. The respondent in that case was appointed on November 16, 1968. On September 9, 1986, for the first time, he made a representation for changing
his date of birth in his service register. 'The Tribunal issued a direction as
sought for by the respondent. This Court set aside the order of the Tribunal
saying that the claim of the respondent that his date of birth was November 27,
1938 instead of November 27, 1928 should not have been accepted on the basis of
the documents produced in support of the said claim, because the date of birth
was recorded as per document produced by the said respondent at the time of his
appointment and he had also put his signature in the service roll accepting his
date of birth as November 27, 1928. The said respondent did not take any step
nor make any representation for correcting his date of birth till September 9, 1986. Recently, in the case of Union of
India v. Hamam Singh4 it was said: (SCC p. 167, para 7) "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 his 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."
7. An
application for correction of the date of birth should not be dealt with by the
tribunal or the High Court keeping in view only the public servant concerned.
It need not be pointed out that any such direction for correction of the date
of birth of the public servant concerned has a chain reaction, inasmuch as
others waiting for years, below him for their respective promotions are
affected in this process. Some are likely to suffer irreparable injury,
inasmuch as, because of the correction of the date of birth, the officer
concerned, continues in office, in some cases for years, within which time many
officers who are below him in seniority waiting for their promotion, may lose
their promotions for ever. Cases are not unknown when a person accepts
appointment keeping in view the date of retirement of his immediate senior.
According to us, this is an important aspect, which cannot be lost sight of by
the court or the tribunal while examining the grievance of a public servant in
respect of correction of his date of birth. As such, unless a clear case, on
the basis of materials which can be held to be conclusive in nature, is made
out by the respondent, the court or the tribunal should not issue a direction,
on the basis of materials which make such claim only plausible. Before any such
direction is 3 1993 Supp (1) SCC 763 : 1993 SCC (L&S) 276: (1993) 23 ATC
807 4 (1993) 2 SCC 162: 1993 SCC (L&S) 375 :(1993) 24 ATC 92 159 issued,
the court or the tribunal must be fully satisfied that there has been real
injustice to the person concerned and his claim for correction of date of birth
has been made in accordance with the procedure prescribed, and within the time fixed
by any rule or order. If no rule or order has been framed or made, prescribing
the period within which such application has to be filed, then such application
must be filed within the time, which can be held to be reasonable. The
applicant has to produce the evidence in support of such claim, which may
amount to irrefutable proof relating to his date of birth. Whenever any such
question arises, the onus is on the applicant, to prove the wrong recording of
his date of birth, in his service book. In many cases it is a part of the
strategy on the part of such public servants to approach the court or the
tribunal on the eve of their retirement, questioning the correctness of the
entries in respect of their dates of birth in the service books. By this process,
it has come to the notice of this Court that in many cases, even if ultimately
their applications are dismissed, by virtue of interim orders, they continue
for months, after the date of superannuation.
The
court or the tribunal must, therefore, be slow in granting an interim relief
for continuation in service, unless prima facie evidence of unimpeachable
character is produced because if the public servant succeeds, he can always be
compensated, but if he fails, he would have enjoyed undeserved benefit of
extended service and merely caused injustice to his immediate junior.
8. So
far the facts of the present case are concerned, admittedly the respondent
entered into the service of State Government as early as in the year 1958. He
never questioned the entry in respect of his date of birth in his service
register till August 1991, when he filed an application before the Tribunal for
alteration of his date of birth from August 9, 1934 to August 9, 1936. This application was filed only about a year before his
date of superannuation, mentioned in his service register. On September 9, 1992, an interim order was passed by the
Tribunal, when the respondent had already superannuated with reference to the
date of birth mentioned in the service register and ultimately by the impugned
order, the Tribunal directed the appellants to alter his date of birth to August 9, 1936. While issuing such a direction,
the Tribunal has taken into consideration, as to how many brothers the
respondent has and what were the dates of their birth.
Although
the Tribunal has observed that the different dates of birth of the brothers of
the respondent, indicate that "there is a great deal of confusion and
incongruities regarding dates of birth of the various members of the
applicant's family", still on the basis of a report of the Revenue
Divisional Officer, submitted after oral inquiry made from different persons,
including the mother of the respondent, the Tribunal has come to the
conclusion, that the date of birth of the respondent was August 9, 1936 instead
of August 9, 1934. The Commissioner for Revenue Administration, had rejected
the said report submitted by the Revenue Divisional Officer, but the Tribunal
has accepted the said report for correction of date of birth of the respondent.
If the date of birth of a public servant, is corrected only on basis of a
report submitted by a Revenue Officer after holding an inquiry, according to
us, it will introduce uncertainty, in public services. This Court has
repeatedly pointed out that correction of the date of birth of public servant
is permissible, but that should not be done in a casual manner. Any such order
must be passed on materials produced by the public servant from which the
irresistible conclusion follows 160 that the date of birth recorded in the
service book was incorrect. While disposing of any such application, the court
or the tribunal, has first to examine, whether the application has been made
within the prescribed period under some rule or administrative order. If there
is no rule or order prescribing any period, then the court or tribunal has to
examine, why such application was not made within a reasonable time after
joining the service.
9. The
Tamil Nadu Service Manual contains Rules 49 and 49- A, which are the provisions
in respect of alteration and correction of the date of birth. Whenever any
application is filed by persons governed by those service rules, procedures
prescribed therein have to be strictly followed, including the time limit
prescribed for making such an application. Clause (b) of the aforesaid Rule 49
provides that after a person has entered in service, an application to alter
the date of his birth as entered in the official records "shall be
entertained only if such an application is made within five years of such entry
in service...... It need not be pointed out that if an application is made for
correction of the date of birth mentioned in the service records at an early
date or within the time prescribed, the authorities are in a much better
position to verify the same. Normally, in most of the services, the date of
birth is recorded in the service records on the eve of the appointment with
reference to the date of birth mentioned in the Matriculation Certificate,
Higher Secondary Education Board Certificate or any other certificate of
similar nature produced by the applicant concerned at the time of making
application for his appointment. As such whenever an application for alteration
of the date of birth is made on the eve of superannuation or near about that
time, the court or the tribunal concerned should be more cautious because of
the growing tendency amongst a section of public servants, to raise such a
dispute, without explaining as to why this question was not raised earlier. In
the facts and circumstances of the case, it is not possible to uphold the
finding recorded by the Tribunal.
10.Accordingly,
the appeal is allowed. The impugned order is set aside. However, there shall be
no order as to costs.
Contempt
Petition No. 298 of 1993 11.In view of the order passed in the above appeal,
this petition for initiating proceedings for contempt is dismissed.
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