Union of India & Ors Vs. Kantilal Hematram
Pandya [1995] INSC 133 (14
February 1995)
Anand,
A.S. (J) 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:
HEAD NOTE:
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 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 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 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 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
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.
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