Bombay High Court
The State Of Maharashtra Through ... vs Mr. Vishwas Jaywantrao Bhosale ... on 24 June, 2016
Bench: V.M. Kanade
902-903-j- wp-5504-16 & 5390-16
dss
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5504 OF 2016
Union of India ... Petitioner
Vs.
Mr. Vishwas Jaywantrao Bhosale,
Chairman & Managing Director
Maharashtra State Warehousing
Corporation and ors. ... Respondents
***
Mr. Anil Singh, Addl. Solicitor General a/w. Mr. Neel Helekar, Mr.
Rui Rodrigues, M.S. Bhardwaj, Mr. Ashutosh Gole for the Petitioner.
Mr. A.V. Anturkar, Senior Advocate a/w. Mr. Rahul Walia for
Respondent No.1.
Mr. V.B. Thadani, AGP for the Respondent Nos.2 and 3-State.
***
AND
WRIT PETITION NO. 5390 OF 2016
The State of Maharashtra and anr. ... Petitioners
Vs.
Mr. Vishwas Jaywantrao Bhosale,
Chairman & Managing Director
Maharashtra State Warehousing
Corporation and anr. ... Respondents
***
Mr. V.B. Thadani, AGP for the Petitioners -State.
Mr. A.V. Anturkar, Senior Advocate a/w. Mr. Rahul Walia for
Respondent No.1.
Mr. Anil Singh, Addl. Solicitor General a/w. Mr. Neel Helekar, Mr.
Rui Rodrigues, M.S. Bhardwaj, Mr. Ashutosh Gole for the Respondent
No.2.-Union of India.
***
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902-903-j- wp-5504-16 & 5390-16
CORAM : V. M. KANADE, AND
M. S. SONAK, JJ.
DATE : JUNE 24, 2016.
COMMON JUDGMENT : (PER M. S. SONAK, J.)
1] Rule in both petitions. At the request of and with the
consent of learned counsel for the parties, Rule is made returnable
forthwith.
2] The Union of India and State of Maharashtra filed the
aforesaid two writ petitions to challenge the judgment and order dated
8 March 2016 passed by the Central Administrative Tribunal (CAT)
allowing the Original Application No. 743 of 2014 instituted by
respondent No.1, in the matter of change of his date of birth from 1
June 1956 to 5 October 1958.
3] In pursuance of recommendations of the Maharashtra
Public Service Commission (MPSC), the respondent No.1 vide
appointment order dated 18 January 1984 was appointed as Deputy
Collector in the State of Maharashtra with effect from 6 February
1984. At the time of such appointment, his date of birth was recorded
as 1 June 1956 in the service book. This was on the basis of School
Leaving Certificate furnished by the respondent No.1 himself. It is the
case of the respondent No.1 that by application dated 31 January 1989,
he applied for change in the service record of his date of birth from
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1 June 1956 to 5 October 1958. It is further his case that for almost
eight years, the authorities took no action whatsoever in the matter. On
26 September 2000, the Divisional Commissioner, Pune raised some
queries, which, respondent No.1 claims, were duly answered. On 30
March 2005, the respondent No.1 was promoted/inducted into the
Indian Administrative Service (IAS) Cadre. On 15 December 2008,
the State Government, once again raised certain queries, in pursuance
of which the respondent No.1 furnished some documents on 18
September 2010. On 4 May 2011, the State Government, by order,
declined to change the date of birth in service records.
4] The respondent No.1 instituted an original application
before the Maharashtra Administrative Tribunal (MAT), questioning
the order dated 4 May 2011. The original application was rejected by
the MAT on 10 March 2014, inter alia, on the ground that it lacked
jurisdiction in the matter, since the respondent No.1, by then, had
already been promoted/inducted into IAS Cadre.
5] The respondent No.1, on 21 March 2014, once again
made representation to the State Government. Such representation was
forwarded by the State Government to the Central Government on 30
May 2014 . By order dated 26 August 2014, the Central Government
turned down the request of respondent No.1 for change in service
records.
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6] The respondent No.1, thereupon, instituted Original
Application No. 743 of 2014 before the Central Administrative
Tribunal (CAT), which has since been allowed by the impugned
judgment and order dated 8 March 2016. The petitioners, i.e., the
Central Government and State Government have been directed to
effect changes in the service records of respondent No.1 by way of
substitution of the date 5 October 1958, instead of 1 June 1956. The
petitioners have been directed to award consequential benefits to the
respondent No.1, which would include inter alia, extension in service,
on the basis of altered date of birth. Aggrieved by such impugned
judgment and order, both the Central Government and State
Government, have preferred present petitions.
7] Mr. Anil Singh, learned Additional Solicitor General for
the Union of India and Mr. V.B. Thadani, learned AGP for the State of
Maharashtra have made the following submissions in support of their
respective petitions:
A] There is serious doubt as to whether the
respondent No.1 had indeed applied for change in date of
birth in the service records within a period of five years
from the date of appointment. The circumstance that the
alleged application dated 31 January 1989 was
accompanied by an affidavit dated 1 March 1989, in fact,
renders it impossible that any complete application
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seeking such change was made within a period of five
years from the date of initial appointment. The learned
counsel submitted that in absence of satisfactory proof that
the respondent No.1 had indeed applied for alteration
within a period of five years from the date of initial
appointment, there was no question of the CAT directing
alteration in service records at the stage when there were
hardly three months remaining for the respondent No.1 to
attain the age of superannuation;
B]
ig Assuming that the application dated 31
January 1989 was indeed made by respondent No.1 on the
date indicated upon application, there is delay and laches
involved in the matter of pursuing such alleged
application. Such delay and laches extends to almost over
two decades. Besides, at the stage when the respondent
No.1 was promoted/inducted into the IAS Cadre on 31
March 2005, the date of birth as originally recorded was
accepted by respondent No.1, without any serious demur.
The learned counsel, therefore, contended that on basis of
pleas of delay, laches, acquiescence and estoppel, no relief
could have been granted to respondent No.1;
C] Assuming that the application for alteration
was indeed made within five years from the date of
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902-903-j- wp-5504-16 & 5390-16
appointment, no case was made out for favourable
consideration of such application considering the scope
and import of Rule 16-A of the All India Services (Death-
cum-Retirement Benefits) Rules, 1958 (Central Rules) and
for that matter Rule 38 of the Maharashtra Civil Service
(General Conditions of Services) Rules, 1981 (State
Rules). The learned counsel submitted that inasmuch as
the CAT has failed to take into consideration the true
scope and import of such statutory Rules, there is
jurisdictional error, which warrants interference with the
impugned judgment and order;
D] The material produced on record by
respondent No.1, at the best, was of doubtful nature. There
were unexplained alterations and over-writings in the
Register of Date of Births. The names of persons involved,
did not completely tally. The CAT, clearly exceeded the
jurisdiction in elevating such doubtful material to the
status of "irrefutable evidence". Accordingly, learned
counsel submitted that there is clear perversity in the
impugned judgment and order by the CAT; and
E] Finally, the learned counsel submitted that the
CAT, in making the impugned judgment and order has
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ignored the various relevant parameters laid down by the
Hon'ble Apex Court in the matters of change of date of
birth in the service records, including inter alia, the effect
of such relief upon other employees in the cadre, awaiting
their promotion, consequent upon the retirement of
incumbent Government servant. The learned counsel
submitted that the impugned judgment and order is in fact,
contrary to the principles laid down by the Hon'ble Apex
Court in several decisions on the subject.
8]
Mr. Anturkar, learned senior advocate appearing for
respondent No.1 -Vishwas J. Bhosale, submitted that the application
dated 31 January 1989 made by the respondent No.1, was well within
five years from the date of his original appointment and therefore,
there was full compliance with the limitation period prescribed under
Rule 38 of the State Rules. Mr. Anturkar submitted that the
circumstance that such application was not attended to by the State
Government for several years, is not a circumstance that can be held
against the respondent No.1. Mr. Anturkar further pointed out that it
was never the case of either the State Government or the Central
Government that no such application for correction was ever made or
that such application was made beyond period of five years from the
date of initial appointment. On the aspect of discrepancy in the date of
affidavit accompanying the application dated 31 January 1989,
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Mr. Antrukar submitted that since no such issue was ever raised before
the CAT, the petitioners may not be permitted to raise such issue for
the first time before this Court. In this regard, Mr. Anturkar placed
reliance upon the decision in case of Bondar Singh and ors. Vs.
Nihal Singh and ors1, to submit that in absence of pleadings on an
issue, no evidence can be looked into in relation therein. In any case,
Mr. Anturkar submitted that possibly the affidavit accompanying the
original application dated 31 January 1989, was lost and the
respondent No.1 filed a fresh affidavit bearing the date 1 March 1989.
Mr. Anturkar maintained that had this issue been raised before the
CAT, the respondent No.1 would have certainly filed an affidavit in
order to explain such discrepancy.
9] Mr. Anturkar further submitted that the application made
by the respondent No.1 on 31 January 1989, was entirely in
consonance with relevant State Rules as well as Central Rules. Mr.
Anturkar also submitted that the evidence produced by respondent
No.1, in the form of extracts from Register of Birth, was conclusive
and irrefutable. The CAT has acted well within its jurisdiction in
accepting such evidence and on the basis thereof directing correction
in the service records. By reference to the 'family tree', placed on
record, Mr. Anturkar submitted that if the date of birth of respondent
No.1, is to be regarded as 1 June 1956, then that leaves a gap of hardly
two to three months between the respondent No.1 and his elder
1 (2003) 4 SCC 161
8 / 26
902-903-j- wp-5504-16 & 5390-16
brother, which is a biological impossibility. Mr. Anturkar assailed the
findings in the orders made by the State and Central Government,
including in particular their assumption that respondent No.1 would
have been less than five years of age when admitted to the Primary
School, in case, his correct date of birth, i.e., 5 October 1958 is
accepted. Mr. Anturkar submitted that even if the correct date of birth,
i.e., 5 October 1958 were to be accepted, respondent No.1 would be
well above five years of age when admitted to the Primary School. Mr.
Anturkar submitted that there is nothing on record to even remotely
suggest that the respondent No.1 has derived any undue advantage or
benefits on the basis of the date of birth recorded in the service book
or for that matter the date of birth recorded in the School Leaving
Certificate. Mr. Anturkar submitted that all these relevant
considerations had in fact been ignored by the petitioners and the CAT
was justified in allowing the original application and granting relief to
respondent No.1. The exercise undertaken by the CAT, therefore,
warrants no interference considering the restrictive parameters of
judicial review under Articles 226 and 227 of the Constitution of
India.
10] Having heard the learned counsel for the parties, perused
the records and examined the impugned judgment and order made by
the CAT, we now proceed to evaluate the rival contentions.
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11] The respondent No.1 was appointed as Deputy Collector
vide order dated 18 January 1984, but with effect from 6 February
1984. Alongwith his Original Application No. 743 of 2014 instituted
by respondent No.1 before the CAT, he had annexed a copy of
application dated 31 January 1989, allegedly made by him to the State
Government seeking alteration in the date of birth in the service book
from 1 June 1956 to 5 October 1958. the application states that the
following three documents have been enclosed alongwith the
application
(i) Birth Certificate;
(ii) School Leave Certificate; and
(iii) Affidavit.
12] The affidavit enclosed alongwith the application,
however, bears the date 1 March 1989. At least in the original
application, there was no explanation whatsoever in the context of
such an obvious discrepancy. Some explanation at the very outset, was
necessary, because, in a catena of judgments, the Hon'ble Apex Court
has held that an application for alteration of date of birth in the service
records, if made, beyond five years from the date of initial
appointment, is liable to be rejected, upon the said ground alone. The
circumstance the application dated 31 January 1989 was accompanied
by an affidavit dated 1 March 1989, raises doubt as to whether such
application was indeed made within a period of five years from the
date of initial appointment.
10 / 26
902-903-j- wp-5504-16 & 5390-16
13] The perusal of the record does indicate that the plea in the
context of affidavit dated 1 March 1989 may not have been
specifically raised by either the State Government or the Central
Government before the CAT. However, that by itself, is not an excuse
for the respondent No.1 not explaining this obvious discrepancy in the
original application, at the outset. The belated attempt in this Court, to
contend that the affidavit enclosed alongwith application dated 31
January 1989 was misplaced and therefore, fresh affidavit was
furnished on 1 March 1989, hardly inspires much confidence.
14]
However, lest respondent No.1 complains that since such
issue was not specifically raised by the petitioners before the CAT and
therefore, respondent No.1 has not dealt with the same, we make it
clear that we do not propose to interfere with the impugned judgment
and order made by the CAT or non-suit the respondent No.1 on the
ground that the application for alteration made by him was beyond the
prescribed period of five years as provided under the Rules. We are
satisfied that there are several reasons, which render the impugned
judgment and order made by the CAT, unsustainable.
15] In matters of this nature, the Hon'ble Apex Court in case
of Secretary & Commissioner, Home Department and ors. Vs. R.
Kirubakaran2, has observed thus:
2 AIR 1993 Supreme Court 2647
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"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 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
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902-903-j- wp-5504-16 & 5390-16
on the applicant, to prove the wrong recording of his
date of birth, in his service book".............
(emphasis supplied)
16] Similarly, in case of Government of Andhra Pradesh
and anr. Vs. M. Haygreev Sarma3, the Hon'ble Apex Court has held
that the date of birth recorded in the service book on the basis of
School Leaving Certificate at the time of entry into service, cannot be
ordinarily changed even on the basis of extracts of entries contained in
Birth and Death Register maintained under the Births, Deaths and
Marriages Registration Act, 1886.
17] In the present case, if the impugned judgment and order is
perused, it is quite apparent that the CAT has not even adverted to
much less, taken into consideration the principles laid down by the
Hon'ble Apex Court in case of R.Kirubakaran (supra) or M.
Haygreev Sarma (supra). There is absolutely no consideration to the
'chain reaction' referred to by the Hon'ble Apex Court, which is
bound to arise by the grant of relief to the respondent No.1, at a stage
when there were hardly three months left for him to superannuate on
the basis of date of birth as recorded in the service book. Besides, we
are satisfied that this was not at all case where the respondent No.1
can be said to have made out a very clear case or that the material
produced by him on record was conclusive in nature and not merely
3 (1990) 2 SCC 682
13 / 26
902-903-j- wp-5504-16 & 5390-16
"plausible". As observed by the Hon'ble Apex Court, onus is upon the
party seeking alteration in service record and such onus is required to
be discharged by producing evidence, which may amount to
"irrefutable proof relating to his date of birth".
18] The respondent No.1, in this case, has basically relied
upon extracts from Birth and Death Register of the year 1956, apart
from certain self serving affidavits. The explanation that the record of
date of birth as 1 June 1956 in the school records might have been
some mistake, is hardly an explanation which deserves acceptance in
the facts and circumstances of the present case. The original Register
of Birth was shown to us, since, only xerox copies of the extract forms
a part of the record. In the Register, against the entry upon which
respondent No.1 places reliance, the name indicated is "Prakash
Jaiwantrao Marutirao Bhosale". The name "Prakash" has been
bracketed and beneath the same the name "Vishwas" is inserted.
There is some overwriting, even insofar as the actual record of date of
birth is concerned. There are some illegible initials in the matter of
bracketing the name of "Prakash" and the inclusion name of
"Vishwas". At this point of time, it is impossible to determine whether
the changes were made by some authorised officer and when. The ink
for making the original entries and the alterations, at least prima facie,
does not tally. Except for certain self serving affidavits made by
respondent No.1 and his brother, there is no reliable material produced
14 / 26
902-903-j- wp-5504-16 & 5390-16
by the respondent No.1 to indicate his name was also "Prakash" in
addition to "Vishwas". No other records whether contemporaneous or
otherwise have been produced to indicate that respondent No.1 also
used an alias "Prakash". Suffice to observe that the CAT has certainly
exceeded jurisdiction in elevating such doubtful material to the status
of "conclusive proof", or "irrefutable evidence".
19] The CAT, in the impugned judgment and order, has made
reference to the 'family tree' and the age of elder brother of respondent
No.1. The CAT had reasoned that if date of birth of elder brother of
respondent No.1 is 24 June 1956, then the respondent No.1 could not
have been born on 1 June 1956. In this regard, we have again perused
the records, including, the original Register of Births in relation to
elder brother of respondent No.1. In the Register, the elder brother is
referred to as "Dharrao Jaywantrao Bhosale". However, there is
other record which indicates that the elder brother is referred to as
"Shankar". Again, apart from self-serving affidavits, there is no
credible material on record to indicate that "Dharrao" and
"Shankar" are the one and the same person.
20] Upon taking into consideration the material on record, we
are satisfied that the respondent No.1 had failed to discharge the onus
cast upon him to produce the evidence amounting to "conclusive
proof" or "irrefutable proof". The material produced on record by the
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respondent No.1, certainly did not qualify as "conclusive proof" or
"irrefutable proof". On basis of such doubtful material, the CAT,
clearly exceeded the jurisdiction vested in it, by permitting alteration
in the date of birth, at a stage when the respondent No.1 was, within
hardly three months to attain the age of superannuation on the basis of
date of birth recorded in his service book. The CAT has ignored the
law laid down by the Hon'ble Apex Court in case of R.Kirubakaran
(supra) , in making the impugned judgment and order.
21]
We are also satisfied that the respondent No.1 had failed
to make out any case warranting alteration in service records,
particularly, considering the position of the statutory rules as
applicable in the present case.
22] The Original Application No. 743 of 2014, in which, the
impugned judgment and order has been made had been instituted by
respondent No.1 to challenge the Central Government's order dated 26
August 2014, rejecting the application dated 21 March 2014 seeking
alteration in service records. Such application was required to be
considered by the Central Government on the basis of provisions
contained in Rule 16-A of the Central Rules, which read thus:
"16-A Acceptance of date of birth-
16(1) For the purpose of determination of the date
of superannuation of a member of the service, such date
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shall be calculated with reference to the date of his birth
as accepted by the Central Government under this rule.
16(2) In relation to a person appointed, after the
commencement of the All India Services (Death-cum-
Retirement Benefits) Amendment Rules, 1971
(a) Indian Administrative Service under
clause (a) or clause (aa) of sub-rule (1) of
rule 4 of the Indian Administrative Service
(Recruitment) rules, 1954; or
(b) the Indian Police Service under clause
(a) or clause (aa) of sub-rule (1) of rule 4 of
the Indian Police Service (Recruitment)
ig Rules, 1954; or
(c) the Indian Forest Service under clause
(a) or clause (aa) of sub-rule (2) of rule 4 of
the Indian Forest Service (Recruitment)
Rules, 1966;
the date of birth as declared by such person in the
application for recruitment to the service shall be
accepted by the Central Government as the date of birth
of such person.
16(3) In relation to a person to whom sub-rule (2)
does not apply, the date of birth as recorded in the
service book or other similar official document
maintained by the concerned government shall be
accepted by the Central Government, as the date of birth
of such person.
16(4) The date of birth as accepted by the Central
Government shall not be subject to any alteration except
where it is established that a bonafide clerical mistake
has been committed in accepting the date of birth under
sub-rule(2) or (3)."
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23] Mr. Anturkar, learned senior advocate with his forensic
skill pointed out that Rule 16(2) was inapplicable to the case of
respondent No.1 and that the case had to be considered under Rules
16(3) and 16(4) of the Central Rules. Assuming this is so, there is no
material on record to establish that some bonafide clerical mistake had
been committed in accepting the date of birth of respondent No.1 in
terms of sub-rule (3) of Rule 16 of the Central Rules. In this case, the
service records, at the stage of initial appointment of respondent No.1
were maintained by the State Government. Therein, the date of birth
of respondent No.1 was indicated as 1 June 1956. This was on the
basis of School Leaving Certificate produced by respondent No.1
himself. There was no clerical mistake in the matter of record of such
entry in the service book. At the stage, when the respondent No.1 was
promoted/inducted into the IAS Cadre, there is nothing on record to
establish that the respondent No.1 did not accept this position or
accepted this position under protest or without prejudice to the then
pending dispute. In these circumstances, it is quite apparent that
respondent No.1 had failed to make out any case warranting the
alteration in service records in terms of Rule 16-A of the Central
Rules.
24] In the precise context of interpretation of Rule 16-A of
Central Rules, the Hon'ble Apex Court in case of Union of India Vs.
C.Rama Swamy and others4, at paragraphs 21, 22, 25 and 26, has
4 (1997) 4 SCC 647
18 / 26
902-903-j- wp-5504-16 & 5390-16
observed thus:
21. The date of birth as recorded in the service-
book, in the case of pre-4-12-1971 entrants, and the date
as declared by an officer in the application for
recruitment, in the case of post-4-12-1971 entrants, has
to be accepted as correct by the Central Government
and, as already indicated, this can be altered only if
under sub-rule (4) it is established that a bona fide
clerical mistake had been committed in accepting the
date of birth. It is for this reason we find that in the
orders rejecting the representation of the respondent the
Central Government has stated that there was no bona
fide clerical mistake which had been committed.
22. It was faintly submitted that on the basis of
the birth certificate obtained from the Sub-Registrar's
Office by the respondent as well as his horoscope it
should be held that there was a bona fide clerical mistake
and, therefore, the date of birth could be corrected. We
are unable to accept the submission. Bona fide clerical
error would normally be one where an officer has
indicated a particular date of birth in his application
form or any other document at the time of his
employment but, by mistake or oversight a different
date has been recorded. In the present case admittedly
the date of birth indicated in the application form filled
in for the purpose of taking the competitive
examination was that of 17-6-1939. This date was then
incorporated in his descriptive roll kept in his service
record and this was duly signed by the respondent.
Admittedly the respondent also believed this to be his
correct date of birth, therefore, it was not a case where
the date of 17-6-1939 had been incorrectly recorded in
the service-book as a result of any bona fide clerical
mistake. In fact in his original representation it was not
even suggested by the respondent that there had been any
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clerical mistake. The positive case put forth by the
respondent was that it is after the demise of his mother
that he had discovered that his real date of birth was
15-6-1941 and not 17-6-1939.
25. In matters relating to appointment to service
various factors are taken into consideration before
making a selection or an appointment. One of the
relevant circumstances is the age of the person who is
sought to be appointed. It may not be possible to
conclusively prove that an advantage had been gained
by representing a date of birth which is different than
that which is later sought to be incorporated. But it will
not be unreasonable to presume that when a candidate,
at the first instance, communicates a particular date of
birth there is obviously his intention that his age
calculated on the basis of that date of birth should be
taken into consideration by the appointing authority for
adjudging his suitability for a responsible office. In
fact, where maturity is a relevant factor to assess
suitability, an older person is ordinarily considered to
be more mature and, therefore, more suitable. In such a
case, it cannot be said that advantage is not obtained by
a person because of an earlier date of birth, if he
subsequently claims to be younger in age, after taking
that advantage. In such a situation, it would be against
public policy to permit such a change to enable longer
benefit to the person concerned. This being so, we find it
difficult to accept the broad proposition that the principle
of estoppel would not apply in such a case where the age
of a person who is sought to be appointed may be a
relevant consideration to assess his suitability.
26. In such a case, even in the absence of a
statutory rule like Rule 16-A, the principle of estoppel
would apply and the authorities concerned would be
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902-903-j- wp-5504-16 & 5390-16
justified in declining to alter the date of birth. If such a
decision is challenged the court also ought not 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 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 the
decision in Manak Chand case does not lay down the
correct law."
ig (emphasis supplied)
25] The observations at paragraphs 25 and 26, in case of
C.Rama Swamy (supra), affords a complete answer to the contention
of Mr. Anturkar that in the present case, respondent No.1, has not
taken any advantage by representing his date of birth as 1 June 1956 at
the stage of his initial appointment.
26] In the facts and circumstances of the present case, Rule
38 of the State Rules also does not assist the respondent No.1, in the
matter of securing alteration in the date of birth in the service records.
Rule 38 provides for the procedure for writing the events and
recording the date of birth in the service book. Therein, it is further
provided that when once an entry of age or date of birth has been
made in the service book, no alteration of the entry should afterwards
be allowed, unless it is shown that the entry was due to want of care
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on the part of some person "other than the individual" or is an
obvious clerical error.
27] As observed earlier, the date of birth of 1 June 1956, was
on the basis of School Leaving Certificate produced by the respondent
No.1 himself. As such, there was no question of any obvious clerical
error in the record of date of birth as 1 June 1956. Further, if the
provisions contained in Rule 38 (f) are taken into consideration, it is
clear that the entry in the present case was not on account of any want
of care on the part of the some person other than the individual in
question, which in the present case, would be respondent No.1. If the
respondent No.1 had furnished some allegedly incorrect documents,
then obviously, the respondent No.1 cannot take advantage of his own
mistake and insist upon correction in the date of birth, at least in the
facts and circumstances of the present case.
28] In the present case, both the Central Government as well
as State Government, on the basis of material produced before them
had concurrently declined to alter the date of birth of respondent No.1
in the service records. Although, there might be some difficulty
accepting some part of the reasoning, we are satisfied that the
material produced on record by the respondent No.1 could never have
been elevated to the status of "conclusive proof" or "irrefutable
proof", so as warrant alterations. Besides, the scope of interference
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with such decisions of the Central Government and the State
Government is quite limited. In case of G.M. Bharat Coking Coal
Ltd., West Bengal Vs. Shib Kumar Dushad and ors. 5, the Hon'ble
Apex Court has observed that in a case where the controversy over the
date of birth of an employee has been raised long after joining the
service and the matter has engaged the attention of the authority
concerned and has been determined by the following procedure
prescribed under the service rules or general instructions issued by the
employer and it is not the case of the employee that there has been any
arithmetical mistake or typographical error patent on the face of
record, the High Court in exercise of its extraordinary jurisdiction
under Article 226 of the Constitution should not interfere with the
decision of the employer.
29] The law laid down by the Hon'ble Apex Court as
aforesaid, will equally apply in the matter of exercise of similar
jurisdiction of judicial review by the CAT. If the relevant
considerations were to be taken into account by the CAT, there was
really no case made out to interfere with the concurrent decisions
taken by the Central Government and the State Government in the
present case. This was clearly not a case of any obvious and bonafide
clerical, arithmetical or typographical error apparent on the face of
record.
5 (2000) 8 Supreme Court Cases 696
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30] We are also satisfied that considerations like delay,
laches, acquiescence and estoppel arose, in the facts and
circumstances of the present case, but, such considerations were
ignored by the CAT in making the impugned judgment and order. For
example, even if we are to proceed on the basis that the respondent
No.1 applied for alteration on 31 January 1989, it is his own case that
such application remained unattended for a period of eight years. In
fact, the record indicates that upto the year 2000, i.e., for a period of
almost eleven years, there was no follow up. In the year 2000, the
respondent No1 claims to have responded to some queries. Again, the
record is by no means clear on this aspect. Thereafter in 2005, the
respondent No.1 was promoted/inducted into the IAS Cadre. At this
stage, there is no material on record to indicate that the respondent
No.1 disputed the date of birth in the service book or made it clear that
the induction/promotion was without prejudice to the then pending
dispute in this regard. Again, in the year 2008, some documents were
demanded from the respondent No.1. The respondent No.1 furnished
such documents after two years, i.e., in 2010. In this regard, it must be
stated that it is not sufficient for a Government employee to merely
keep on making repeated representations. It is necessary that the
Government employee approaches a Court or Tribunal for redressal of
his grievances, if, the same are not redressed within reasonable period.
In the present case, there is no record of even repeated representations
by respondent No.1. There is no merit in the contention that the State
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902-903-j- wp-5504-16 & 5390-16
Government's order dated 4 May 2011 was not final rejection, but
merely expression of opinion. Suffice to note that all these facts and
circumstances which are clearly borne from the record indicate that
the issues of delay, laches, acquiescence and estoppel arose in the
matter and that the CAT completely ignored the same in making the
impugned judgment and order.
31] In the facts and circumstances of the present case, we are
constrained to observe that it is doubtful as to whether the respondent
No.1 did apply for alteration in the date of birth in his service book
within the period of five years from the date of his initial appointment.
However, we do not wish to hold against the respondent No.1 on such
basis and therefore, we have proceeded on the basis that the
application for alteration was made within the prescribed period.
Nevertheless, the record bears out that such application was never
pursued by the respondent No.1 with proper dispatch. Further, the
material produced on record by the respondent No.1 could not have
been regarded as conclusive proof or irrefutable proof, though, this is
the test prescribed in case of in case of R. Kirubakaran (supra) when
dealing with requests for alteration of date of birth in service records.
In fact, the extracts from the Birth Register produced by respondent
No.1 had alteration and over-writings, which were not suitably
explained. The names of persons referred to in the Registers did not
entirely tally with the respondent No.1 or his brother. This was not a
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902-903-j- wp-5504-16 & 5390-16
case of any bonafide clerical error so as to attract the provisions
contained in Rule 16-A of the Central Rules or Rule 38 of the State
Rules. None of the parameters prescribed under the said Rules were
applicable to the case of respondent No.1. The decisions of the
Hon'ble Apex Court and the principles laid down therein, in such
matters were ignored by the CAT in making the impugned judgment
and order. The considerations like delay, laches, acquiescence and
estoppel, which arose in the facts and circumstances of the present
case, were also ignored by the CAT in making the impugned judgment
and order. The impact, which the grant of relief to respondent No.1, at
this stage, would have upon the other officers in a cadre has been
ignored. In case of R. Kirubakaran (supra), the Hon'ble Apex Court,
has made reference to "chain reaction" which is very relevant
consideration, but the same has been ignored by the CAT in making
the impugned judgment and order. For all these reasons, we are
satisfied that the impugned judgment and order made by the CAT
warrants interference. Accordingly, the impugned judgment and order
is set aside.
31] Rule is accordingly made absolute in both the petitions.
There shall, however, be no order as to costs.
[M. S. SONAK, J.] [V. M. KANADE, J.]
dinesh
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