Nasruddin Shah vs Union Of India & 3 Ors.
2013 Latest Caselaw 1237 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 36
 
Case :- WRIT - A No. - 22518 of 2013
 
Petitioner :- Nasruddin Shah
 
Respondent :- Union Of India & 3 Ors.
 
Petitioner Counsel :- Ashish Srivastava
 
Respondent Counsel :- A.S.G.I.
 

 
Hon'ble Vineet Saran,J.

Hon'ble B. Amit Sthalekar,J.

This writ petition has been filed by the petitioner challenging the order of the Central Administrative Tribunal dated 4..4.2013 and the order dated 27.2.2013 passed by the General Manager ordnance Factory, Kanpur.

The petitioner filed an Original Application in the Central Administrative Tribunal being O.A. No. 1149 of 2010 seeking quashing of the orders dated 7.6.2010 and 30.6.2010 whereby his request for correction of date of birth from 23.2.1953 to 23.2.1955 had been rejected. The said Original Application was disposed of by the Tribunal by its order dated 7.2.2013 with a direction to the competent authority that if the petitioner files a representation annexing all the relevant documents within a period of one week to the competent authority the said authority shall dispose of his representation by a reasoned and speaking order. In pursuance of the said order the petitioner filed his representation before the General Manager Ordnance Factory, Kanpur dated 15.2.2013. This application was considered by the General Manager Ordnance Factory, Kanpur and it was held that the date of birth of the petitioner cannot be altered. Aggrieved by the said order the petitioner filed an Original application No. 381 of 2013 which was dismissed by the Tribunal by order dated 4.4.2013.

Hence the present writ petition.

We have heard Sri Ashish Srivastava, learned counsel for the petitioner and Sri R.B. Singhal, learned ASGI assisted by Sri N.K. Mishra, learned counsel for the respondents no.1, 2 and 3.

From the averments made in the writ petition and the documents on record, the facts emerging are that the petitioner was appointed as a labour 'B' in the Ordnance Factory, Kanpur on 6.6.1977 as a probationer. At the time of his appointment he submitted his High School certificate issued by the Bihar Vidyalaya Pariksha Samiti, Patna in support of his date of birth. The petitioner is stated to have passed the High School examination in 1972 and in the certificate his date of birth was mentioned as 23.2.1953 and the same date was also recorded in his service book. After 32 years from the date of issue of High School certificate and 27 years after joining service, the petitioner submitted his representation dated 17.8.2004 for correction of date of birth on the ground that his date of birth was 23.2.1955 which was incorrectly mentioned in his High School certificate as 23.2.1953. He is stated to have taken up the matter with the Bihar Board, Patna and the Board amended the date of birth of the petitioner to be read as 23.2.1955 and thereafter the Deputy Secretary, Bihar Vidyalaya Pariksha Samiti, Patna referred the matter of the petitioner to the Ordnance Factory, Kolkata vide its letter dated 19.1.2005 and the Ordnance Factory, Kolkata in turn referred the matter to the Ministry of Defence. The Ministry of Defence vide its letter dated 14.8.2006 called for the following documents:

1. Record of High School Jaitput from where the petitioner is stated to have appeared in the examination.

2. Any other documentary proof such as extract from the birth register in support of actual date of birth claimed by him.

3. Copy of representation/application for the first time submitted by the petitioner for alteration of date of birth if the representation was not submitted within 5 years prescribed time limit, reasons for delay.

In reply the Ordnance Factory Board informed the Ministry of Defence that the petitioner had submitted his first representation/application before the Ordnance Factory, Kanpur for alteration of date of birth on 17.8.2004 which was much beyond the time limit of five years. The petitioner's marksheet/admission card were also submitted wherein his date of birth which was shown as 23.2.1953 was corrected to be read as 23.2.1955.

It is not disputed between the parties that under the Central Government orders, alteration of date of birth can be made with the sanction of the Ministry/Department if the employee makes a request in this regard within five years of his entry into government service, and if it is established that a genuine/bona fide mistake had occurred in recording his date of birth. It is submitted by Sri Ashish Srivastava, learned counsel for the petitioner that in 1999, the Bihar Vidyalaya Pariksha Samiti, Patna had issued a notification notifying a scheme for correction in the marksheet and the certificate of High School and Intermediate on payment of Rs. 400/- in the Treasury Chalan. Averments to that effect have been made in para 4.8 of the O.A., but the copy of the notification has not been filed. It is further submitted that on 15.7.2004 the Vidyalaya Board Patna corrected the entry in the date of birth in the High School marksheet of the petitioner to be read as 23.2.1955 in place of 23.2.1953. It is on the strength of this corrected High School certificate that the petitioner submitted his representation before the competent authority on 17.8.2004 for correction of his date of birth.

Sri R.B. Singhal, learned ASGI, on the other hand, submitted that the petitioner had neither filed the alleged notification of 1999 before the Tribunal nor has he filed the same along with this writ petition and, therefore, the whole story of there being such a notification is nothing but a concoction of the petitioner to gain undue advantage and for getting his date of birth altered. He further submitted that the Central Government Circulars which are published in the Swami's Compilation clearly provide that an employee may move an application for alteration of his date of birth within five years from the date of entry into service and any application submitted thereafter will not be accepted unless the employee is able to establish that a genuine mistake has occurred in recording the date of birth in his service book.

Sri Singhal further submitted that the petitioner had passed High School examination in 1972 wherein his date of birth was noted as 23.2.1953 and after 32 years he managed to get the date of birth in the High School Certificate altered. He further submitted that assuming that the act of alteration of the date of birth by the Bihar Vidyalaya Pariksha Samiti, Patna was genuine but the petitioner submitted his application for correction of date of birth before the competent authority in the Ordnance Factory, Kanpur through his representation dated 17.8.2004 i.e. 27 years after entry into service and therefore his claim for correction of date of birth in the service record was grossly barred by time and therefore rightly rejected by the competent authority by the impugned order dated 27.2.2013 which was upheld by the Tribunal in the subsequent O.A. No. 381 of 2013 by its order dated 4.4.2013.

Sri Ashish Srivastava, the learned counsel for the petitioner has also placed before us an office memorandum of Ministry of Home Affairs No. 19017/1/76-ESTT-A dated 10.10.1977 and he particularly referred to para 3 of the said office memorandum, the relevant extract of which reads as follows:

" 3. While considering one such case referred to this Dept. by a Ministry, the Home Minister minuted as follows:

" I am afraid the views of the Ministry will create innumerable problems and confusions. It is a well known rule that the date of birth on basis whereof a government servant entered into service, will govern his date of retirement also. Any deviation from it, therefore, should not be considered whatever the arguments that may be advanced in its favour."

In the light of the above observations of the Home Minister, which are brought to the notice of all Ministries/ Departments, this dept. is to request that requests from Govt. servants for making a change in their date of birth should not be entertained except where it has been established that a clerical mistake had been committed in recording the date of birth in the Service Book."

The office memorandum is absolutely clear and unambiguous and provides that request for change in date of birth shall not be entertained except where it has been established that a clerical mistake had been committed in recording the date of birth in the service book. This office memorandum has been considered by the General Manager Ordnance Factory in his impugned order dated 27.2.2013 while rejecting the claim of the petitioner for correction of date of birth. We have also gone through the said office memorandum and in our opinion, it does not support the case of the petitioner at all. It is not disputed that the date of birth of the petitioner in his High School Certificate of the year 1972 was recorded as 23.2.1953 and the same date was also recorded in his service book and therefore, it cannot be said that there was any clerical error which entitled the petitioner to claim correction of the said date after 27 years of service.

The Supreme Court in the case (1993) 2 SCC 162 (Union of India Vs. Harnam Singh) referring to the Government of India, Ministry of Home Affairs Department of Personnel and Administrative Reforms Notification dated 30.11.1979 and Fundamental Rule 56 (m) has held that the employee has to seek correction of his date of birth within 5 years from the date of entry into the service. Para 16 of the said judgment reads as follows:

"16. In the facts and circumstances of this case, we are not satisfied that the Tribunal was justified in issuing the direction in the manner in which it has been done. The application for correction of date of birth, entered in the service-book in 1956 , for the first time made in September 1991, was hopelessly belated and did not merit any consideration. As already noticed, it had not been made even within the period of five years from the date of coming into force of Note 5 to FR 56 (m) in 1979. The Tribunal, therefore, fell in error in issuing the direction to correct his date of birth and the impugned order of the Tribunal cannot be sustained."

In (1994) 2 SCC 491 (State of Orissa and others Vs. Brahamarbar Senapathi) the Supreme Court in para 4 of the said judgment has held that :

" an application for effecting a change in the date of birth shall be summarily rejected if filed after five years of entry into government service."

In (1994) 6 SCC 302 (State of Tamil Nadu Vs. T.V. Venugopalan), it was again held by the Supreme Court that the application for correction of date of birth of an in-service employee should be made within 5 years from the date when the Rules had come into force. Para 7 of the said judgment reads as follows:

"7...............This Court has, repeatedly, been holding that the inordinate delay in making the application is itself a ground for rejecting the correction of date of birth."

In (1995) 2 SCC 82 (Chief Medical Officer versus Khadeer Khadri), the Supreme Court interpreting the provisions of Rule 2 (j) of the Andhra Pradesh Public Employees (Recording and Alteration of Date of Birth) Rules 1984, has held in para 4 as follows:

"4. No doubt, sub-rule (5) of Rule 2 of the Andhra Pradesh Public Employees (Recording and Alteration of Date of Birth) Rules, 1984, provides power for correction of the bona fide mistake in recording the date of birth. It cannot be said that it is a clerical mistake." The date of birth having been given and recorded in the service register as early in 1955 it was not a bona fide mistake. The respondent claimed that he discovered the mistake in 1991 that his date of birth instead is July 15, 1934 but it was recorded as November 14, 1933. This is only a ruse to get over the bar of limitation to have the date of birth entered in the service record corrected The rules prescribe the procedure for laying the application within three years from the date of entering into service. In 1976, executive instructions were issued for correction of date of birth which were replaced by statutory rules issued in 1984. The latter also prescribes the procedure. He did not avail of the opportunity when, twice, it was available to him to have it corrected. It would clearly show that subsequent belated attempt is not a bona fide one but to have the correction made to his advantage after the bar of limitation created by the rules. The Tribunal has not properly considered the matter in this perspective. The appeal is allowed. O.A. stands dismissed. No costs."

In (1996) 7 SCC 421 (Union of India Vs. Ram Suia Sharma), the Supreme Court rejected the belated claim for correction of date of birth of the employee. In para 2 of the said judgment it was held as follows:

"2.The controversy raised in this appeal is no longer res integra. In a series of judgments, this Court has held that a court or tribunal at the belated stage cannot entertain a claim for the correction of the date of birth duly entered in the service records. Admittedly, the respondent had joined the service on 16.12.1962. After 25 years, he woke up and claimed that his correct date of birth is 2.1.1939 and Government to consider the correction. The direction is per se illegal."

In (1997) 64 SCC 647 (Union of India Vs. C. Rama Swamy and others), the Supreme Court in para 26 has held as follows:

"26. In such as case, even in the absence of statutory rule like Rule 16-A, the principle of estoppel would apply and the authorities concerned would be justified in declining to alter the date of birth. If such a decision is challenged the court also ought nor=t to grant any relief even if it is shown that the date of birth, as originally recorded, was incorrect because the candidate concerned had represented a different date of birth to be taken into consideration obviously with a view that would be to his advantage. Once having secured entry into the service, possibly in preference to other candidates, then the principle of estoppel would clearly be applicable and relief of change of date of birth can be legitimately denied. To that extent that decision on Manak Chand case does not lay down the correct law."

In the present case the admitted case of the petitioner is that when he entered into service, his date of birth had been recorded 23.2.1953 in his service book. He filed an application for correction of date of birth in 2004 i.e. after 27 years of service, on the alleged ground that some notification had been issued in the year 1999 by Bihar Vidyalaya Pariksha Samiti. This notification is not on record either before us nor was it filed before the Tribunal. Thus, this was simply a ruse to get his date of birth in his High School Certificate corrected in a clandestine manner, in which the petitioner succeeded after 32 years of the issue of the High School Certificate in which his date of birth was clearly mentioned as 23.2.1953. Thus, we are not impressed with the submissions made by the learned counsel for the petitioner and in our opinion his claim for alteration of date of birth has rightly been rejected by the General Manager, Ordnance Factory, Kanpur by the impugned order dated 27.2.2013. The reasons given in the said order have been upheld by the Tribunal in its order dated 4.4.2013 and having examined the matter for ourselves after giving an opportunity to the learned counsel for the petitioner to argue the matter at length and to assail the order of the General Manager, Ordnance Factory, Kanpur dated 27.2.2013, we find no reason to interfere with the said order or with the order of the Tribunal.

For the reasons stated above, supported by the law laid down by the Supreme Court, we find no merit in the writ petition and the same is accordingly dismissed.

Order Date :- 24.4.2013

N Tiwari

(B. Amit Sthalekar, J.) (Vineet Saran, J.)