Union Of India Thru Secy., Defence ... vs Jagdev
2013 Latest Caselaw 1121 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 21
 

 
Case :- WRIT - A No. - 42817 of 2005
 

 
Petitioner :- Union Of India Thru Secy., Defence And Others
 
Respondent :- Jagdev
 
Petitioner Counsel :- K.C. Sinha
 
Respondent Counsel :- S.C.,R.K.Shukla,Rakesh Sinha
 

 
Hon'ble Satya Poot Mehrotra,J.

Hon'ble Vipin Sinha,J.

The present Writ Petition has been filed by the petitioners under Article 226 of the Constitution of India, interalia, praying for quashing the order dated 11.3.2005 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad (in short "the Tribunal") allowing Original Application No. 1193 of 1998, filed by the respondent.

It appears that the respondent was appointed on 31.10.1982 on the post of Labour 'B' in Field Gun Factory, Kanpur. It appears that an Attestation Form dated 16.8.1982 (Annexure-4 to the Writ Petition), which was signed by the respondent on the said date, was filled-up giving various particulars in regard to the respondent. In Column No. 7 of the said Form, the date of birth was mentioned as '19.7.40', and the "present age" as on 16.8.1982 was mentioned as '42 years'. In Column No. 10 of the Attestation Form dealing with educational qualification, it was stated that "kakchha panch mein parhta tha".

It further appears that as no documentary evidence regarding date of birth was available with the respondent, medical opinion regarding age of the respondent was taken, and as per the Medical Certificate dated 30.10.1982, the date of birth of the petitioner was recorded in the Service-Book as "30.10.1940". Photostat copy of the relevant extract of the Service-Book is annexed as Annexure-1 to the Writ Petition.

It further appears that at the time of first appointment, the respondent gave various particulars in a Form dated 30.10.1982, copy whereof is annexed as Annexure-5 to the Writ Petition. In Column No. 4 of the said Form, the date of birth of the respondent was mentioned as '30.10.40'. In Column No. 21 of the said Form dated 30.10.1982, it is further mentioned by the respondent that "main school mein parha likha nahin hun."

Subsequently, it appears that the respondent made a declaration dated 27.3.1983 addressed to the petitioner no.3 herein, interalia, stating that the respondent got education upto Class-V and he soon would be submitting Certificate in this regard. Copy of the said declaration has been filed as Annexure-3 to the Writ Petition.

Again, the respondent made an application dated 6.1.1984 before the petitioner no.3 herein, interalia, stating that the School Leaving Certificate dated 12.12.1983 issued by the Head Master, Primary School, Kathongar was being submitted, and the date of birth of the respondent, as recorded in the service records, be corrected in view of the said School Leaving Certificate. Copy of the said application dated 6.1.1984 has been filed as Annexure-6 to the Writ Petition. Copy of the said School Leaving Certificate dated 12.12.1983 has been filed as Annexure-7 to the Writ Petition.

A perusal of the said School Leaving Certificate shows that the date of birth of the respondent as per the said Certificate has been recorded as "19.7.47" ("Unnis saat saintalis").

It further appears that in response to the said application dated 6.1.1984, a letter dated 27.1.1984 on behalf of the petitioner no.3 was issued requiring the respondent to submit Certificate regarding his date of birth from the Office of the Registration of Death and Birth. Copy of the said letter dated 27.1.1984 is annexed as Annexure-10 to the Writ Petition.

In response to the said letter dated 27.1.1984, the respondent sent a letter dated 1.2.1984 to the petitioner no.3 herein, interalia, stating that as there was no Office for Registration of Death and Birth in the area of the respondent at the time of the birth of the respondent, his date of birth as recorded in the Service-Book be corrected on the basis of the School Leaving Certificate. Copy of the said letter dated 1.2.1984 is annexed as Annexure-8 to the Writ Petition.

It further appears that the petitioner no.3 herein thereafter sent a communication dated 25.4.1984 to the District Inspector of Schools, Kanpur for submitting Report regarding the claim of the respondent of having studied in the Primary School, Kathongar and regarding his date of birth as 19.7.1947. The District Inspector of Schools, Kanpur thereupon sent a communication dated 15.6.1984 to the District Basic Shiksha Adhikari, Kanpur, interalia, requiring the latter to submit Report in the matter. Copy of the said letter dated 15.6.1984 of the District Basic Shiksha Adhikari, Kanpur is annexed as part of Annexure-CA6 to the counter affidavit filed in the present Writ Petition, and appears at page 27 of the Paper-Book of the counter affidavit.

It further appears that no action was thereafter taken in the matter for a long time.

On 18.1.1995, a communication was sent to the petitioner no.3 herein, interalia, stating that the Report in the matter was being sent with the said communication dated 18.1.1995. Copy of the said communication dated 18.1.1995 has been filed as part of Annexure-CA6 to the counter affidavit and appears at page 28 of the Paper-Book of the counter affidavit.

It further appears that a Report addressed to the District Inspector of Schools, Kanpur Nagar and purporting to have been signed by the Head-Master, Primary School, Kathongar and the District Basic Education Officer, Kanpur was submitted. In the said Report, it was, interalia, stated that as per the record of the School, the date of birth of the respondent was "29.7.1947" ("untis julai san unnis sau saintalis"). Copy of the said Report has been filed as part of Annexure-CA6 to the counter affidavit, and appears at page 30 of the Paper Book of the counter affidavit.

It further appears that thereafter the application dated 6.1.1984 submitted by the respondent and a further application dated 25.12.1992 submitted by the respondent for change in the date of birth as recorded in the Service-Book were considered by the petitioner no.3 herein, and by the communication dated 12.3.1995, the respondent was informed that no change in his date of birth as recorded in his Service-Book could be made. Copy of the said communication dated 12.3.1995 is annexed as Annexure-12 to the Writ Petition.

It further appears that the respondent thereafter preferred an Appeal.

By the communication dated 11.8.1998, sent by the Director General, Ordnance Factories, Calcutta to the General Manager, Field Gun Factory, Kanpur, it was intimated that the Appeal of the respondent for amendment in his date of birth could not be accepted in view of Article 51 of the Civil Service Regulations. Copy of the said communication dated 11.8.1998 is annexed as Annexure-13 to the Writ Petition.

The respondent thereupon filed the aforesaid Original Application No. 1193 of 1998. As mentioned above, by the order dated 11.3.2005, the said Original Application was allowed and the petitioners herein were directed to amend the date of birth of the respondent as 19.7.1947 in place of 30.10.1940.

Paragraphs 6,7 and 8 of the said order dated 11.3.2005 passed by the Tribunal are reproduced below:

"6. Admittedly, the applicant was appointed on the post of labour 'B' on 30.10.1982 in the Field Gun Factory, Kanpur. At the time of initial appointment his date of birth was recorded on the basis of report of the Medical Officer as per his appearance as 42 years (Annexure-CA-I). There is also no dispute to this effect that the applicant moved an application on 27.3.1983 just within 05 months from his appointment, clearly stating therein that he has studied upto Class V and he will be filing the proof of his date of birth after obtaining the certificate from his School. It is also clearly shown by Annexure-A-4 letter dated 6.1.1984 that he has filed his School Leaving Certificate showing his date of birth as 19.7.1947 (Annexure-10). This fact is also corroborated by Annexure-6. It is also clear that District Inspector of Schools Kanpur vide Annexure-7 called for a report from District Basic Shiksha Adhikari, Kanpur who also called for its authenticity which was accordingly found to be true as shown Annexure-9. A report was also submitted to the claim of the applicant that the applicant was studying in the Primary School Kathongar and his date of birth which is recorded there is 19.7.1947.

7. I have also gone through Annexure-CA-6 filed by the respondents attestation form dated 16.8.1982 in Col. 10 page 46 of the counter affidavit wherein it is clearly written "prathmik school kathogar, kakchha panch mein parhta tha". This document also clearly shows that the applicant has clearly stated this fact on 16.8.1982 so there is no doubt that the applicant has very fairly pointed out this fact that he was studying in 5th Class in the Primary School, Kathongar before his appointment also. It is also admitted fact that the applicant has continuously been representing the respondents for correcting his date of birth as 19.7.1947 as shown in his School Leaving Certificate just within a few months of his appointment, hence this OA has been filed. As the applicant has since been retired on 21.10.2000, considering his age to be 30.10.1940. Had his age been corrected by the respondents as 19.7.1947 he would have served till 2007.

8. In view of the facts and circumstances of the case, I find force in the arguments of the applicant's counsel and I find that the applicant has a case where judicial interference is warranted. Accordingly, the OA is allowed. The order dated 8.9.1998 is hereby quashed and the respondents are directed to amend the date of birth of the applicant as 19.7.1947 in place of 30.10.1940. The applicant shall also be entitled for consequential benefits arising out of the amendment in date of birth. It is further provided that if the tenure of the applicant is still there, then he shall be re-appointed accordingly. This exercise shall be completed within a period of two months from the date of receipt of copy of this order. No order as to costs."

The petitioners have thereafter filed the present Writ Petition, interalia, praying for the reliefs, as mentioned above.

We have heard Shri Rakesh Sinha, learned counsel for the petitioners and Shri R.K. Shukla, learned counsel for the respondent, and perused the record.

It is submitted by Shri Rakesh Sinha, learned counsel for the petitioner that Clause (3) of the Instruction/ Decision No.2 of the Instructions/ Decisions of the Ministry of Defence in regard to Article 51 of the Civil Service Regulations does not permit alteration in the date of birth as recorded in the Service-Book except in exceptional circumstances. It is further submitted that the Tribunal has relied upon the Report purporting to have been signed by the Head-Master of the Primary School and the District Basic Education Officer, Kanpur without verifying the genuineness of the said Report and also without calling for the records on the basis of such Report was submitted. It is further submitted that as per the said Report, the date of birth of the respondent was 29.7.1947, while the copy of the School Leaving Certificate submitted by the respondent showed his date of birth as 19.7.1947. The Tribunal, the submission proceeds, assumed in paragraph 6 of the order that the Report mentioned the date of birth as 19.7.1947, which was evidently not correct.

It is further submitted by Shri Rakesh Sinha, learned counsel for the petitioners that the respondent took varying and contradictory stands from time to time. The respondent in his Attestation Form dated 16.8.1982 mentioned his date of birth as 19.7.1940, and his "present age" as 42 years. In the Attestation Form, the respondent claimed that he used to study in Class-V. However, in the particulars submitted at the time of first appointment in the Form dated 30.10.1982, the respondent stated that he had not studied in any School.

In reply, Shri R.K. Shukla, learned counsel for the respondent submits that the Tribunal on a consideration of the material on record has recorded finding that the date of birth of the respondent as per the School Leaving Certificate was 19.7.1947. The respondent has been agitating the matter since his appointment , and in the circumstances, the Tribunal has rightly directed for amendment in the date of birth of the respondent.

We have considered the submissions made by the learned counsel for the parties.

From the narration of the facts above, it is evident that in the Attestation Form dated 16.8.1982, the respondent mentioned his date of birth as 19.7.1940, and his "present age" as on 16.8.1982 was mentioned as 42 years. On the basis of the Medical Certificate dated 30.10.1982, the date of birth of the respondent was recorded in the Service-Book as 30.10.1940. In the particulars submitted in the Form dated 30.10.1982, the date of birth of the respondent was stated as 30.10.1940.

It is true that soon after his appointment, the respondent made prayer for change in his date of birth on the basis of his School Leaving Certificate, copy whereof has been filed as Annexure-7 to the Writ Petition. The said School Leaving Certificate shows the date of birth of the petitioner as "19.7.47" ("unnis saat saintalis").

Instruction/ Decision No.2 of the Instructions/ Decisions of the Ministry of Defence in regard to Article 51 of the Civil Service Regulations lays down as under:

"2. Procedure for recording date of birth and age in the service records of Civilian employees in Defence Services. (1) (i) Every person on entering service, shall declare his date of birth which shall not differ from any declaration expressed or implied or any public purpose entering service in Defence service in civilian capacity.

(ii) In the case of literate staff, the date of birth shall be invariably supported by documentary evidence, and be entered in the record of service in the Employee's own handwriting. If an Employee is a matriculate or possesses a higher qualification, the date of birth as recorded in his Matriculation/ School Certificate shall be accepted as the date of his birth.

(iii) In the case of illiterate staff, they will be required to produce some documentary evidence, if available, e.g., horoscope or an extract from the Municipal Birth Register in support of the date of birth which shall be recorded by a responsible Gazetted Officer and witnessed by another responsible employee of the Installation not below the rank of a supervisor or of equivalent grade. In case no such proof is available the procedure as laid down in para 2 below will be followed.

2.(a) When the year and the month of birth are known but not the exact date, the 16th of that month shall be treated as the date of birth.

(b) When a person entering service is unable to give his date of birth but gives his age he should be assumed to have completed the stated age on the date of attestation e.g., if a person enters service on 1st January 1950 and if on that date his age is stated to be 18, his date of birth should be taken as 1st January 1932.

(c) When the authorities have any doubt about the correctness of the age stated or evidence produced by the person concerned in support of the age, medical opinion to assess his age may also be obtained and suitable date of birth entered in his service record (after taking into account the date stated/ evidence produced by the individual) in the manner prescribed at (b) above.

3. The date of birth as recorded in accordance with these rules shall be held to be binding and no alteration of such date shall be permitted except where prima facie evidence is produced that the date of birth recorded in service records is incorrect. Where alterations become necessary due to a clerical error, it shall be open to the Head of the service in the case of Gazetted officer, and the Senior Officer of an instalation, or any other duly empowered officer, in the case of non-gazetted employees to cause the date of birth to be altered. All other cases, for change of the date of birth shall be decided by the Ministry of Defence in the case of Gazetted Officers, and by authorities specified in Column 3 of Schedule IV in appendix 16 Volume II in part I of this Compilation................................"

From a perusal of the above-quoted Instruction/ Decision in regard to Article 51, it will be noticed that in the case of literate staff, the date of birth shall be invariably supported by documentary evidence, and be entered in the record of service in the own hand-writing of the employee. If the employee is illiterate, he will be required to produce some documentary evidence regarding his date of birth.

From the narration of the facts above, it is evident that no documentary evidence was produced by the respondent at the time of his appointment. In the Attestation Form dated 16.8.1992, though he claimed that he used to study in Class-V, the respondent did not submit any documentary evidence in this regard and he mentioned his date of birth as 19.7.1940.

From a perusal of the above-quoted Instruction/ Decision in regard to Article 51, it is further evident that when the authorities have any doubt about the correctness of the age stated or evidence produced by the person concerned in support of the age, medical opinion to assess his age may also be obtained and suitable date of birth be entered in his service record (after taking into account the date stated/ evidence produced by the individual).

In the present case, as noted above, Medical Certificate dated 30.10.1982 was obtained, and on the basis of the Medical Certificate, the date of birth of the respondent was recorded in the Service-Book as 30.10.1940. It is further evident from the above-quoted Instruction/ Decision in regard to Article 51 that the date of birth as recorded in accordance with these rules shall be held to be binding and no alteration of such date shall be permitted except where prima facie evidence is produced that the date of birth recorded in service records is incorrect.

It will, thus, be noticed that the alteration in the date of birth as recorded in the service records is permissible where "prima facie evidence is produced that the date of birth recorded in service records is incorrect". It is, therefore, necessary that in case the date of birth as recorded in the service records is to be altered, evidence produced by the concerned employee should be trust-worthy, and such evidence should prima facie (i.e., on its face) support the version of the concerned employee.

In the present case, as noted above, the respondent after his appointment claimed that his date of birth was 19.7.1947, and relied upon the School Leaving Certificate dated 12.12.1983. Copy of the School Leaving Certificate is annexed as Annexure-7 to the Writ Petition, and the same shows that the date of birth of the respondent was "19.7.47" (unnis saat saintalis"). Even though, Report in regard to the said claim of the respondent was called for by the petitioner no.3 by the communication dated 25.4.1984, the said Report was submitted by the communication dated 18.1.1995, i.e. after more than ten years. The Report submitted on 18.1.1995, which purports to have been signed by the Head-Master of the Primary School Kathongar and the District Basis Education Officer, Kanpur, mentions the date of birth as per the School records as "29.7.1947" ("untis julai san unnis sau saintalis"). The said Report is thus at variance with the claim of the respondent that his date of birth as per the School Leaving Certificate was 19.7.1947.

The above aspect has not been considered by the Tribunal in its order dated 11.3.2005.

As the relevant Rules normally do not permit alteration in the recorded date of birth of an employee, and such alteration is only permissible where prima facie evidence is produced that the date of birth recorded in the service records is incorrect, it was necessary that the genuineness of the documents relied upon by the respondent for claiming alteration in his date of birth must be established beyond doubt.

In the present case, the School Leaving Certificate submitted by the respondent mentioned his date of birth as 19.7.1947, while the Report submitted on 18.1.1995 showed his date of birth as per the school records as 29.7.1947. There were thus two different dates of birth, namely, 19.7.1947 and 29.7.1947, which creates doubt regarding genuineness of the School Leaving Certificate submitted by the respondent.

In view of the above, we are of the opinion that the present Writ Petition filed by the petitioners deserves to be allowed and the order dated 11.3.2005 passed by the Tribunal is liable to be quashed, and the matter is liable to be remitted to the Tribunal for consideration of the case afresh in the light of the observations made above.

Accordingly, the present Writ Petition filed by the petitioners is allowed and the order dated 11.3.2005 passed by the Tribunal is quashed, and the matter is remitted to the Tribunal for consideration of the case afresh in the light of the observations made above.

However, on the facts and in circumstances of the case, there will be no order as to costs.

Dated : 22.4.2013

safi