Sanjay Kumar vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 602 Del

ORDER

T.S. Thakur, J.

1. In this petition for a writ of certiorari, the petitioner has called in question an order dated 29th January, 2004 issued by the Armoured Corps Centre and School, Ahmednagar whereby the petitioner has been held ineligible for enrollment and his candidature for military service cancelled on account of a variation found in the documents furnished by the petitioner and those maintained by the Record Office in the Army. The controversy arises in the following background:

2. The petitioner's father is an ex-serviceman. For recruitment to the Indian Army, the respondents have provided for what is described as Unit Headquarter Quota meant for eligible wards of retired/serving soldiers. The reservation is a welfare measure for those who are serving or have served the Indian Army.

3. For enrollment in the Indian Army in October, 2003, the petitioner applied against a vacancy of a clerk under UHQ quota. According to the priorities for different categories falling in UHQ quota, sons and grandsons of serviceman/ex-serviceman fall in priority No. 2. A written examination was also taken by the petitioner who qualified the same. In the process of selection, however, the respondents found a discrepancy in the date of birth as mentioned in the matriculation certificate produced by the petitioner in support of his claim and that mentioned in the Sheet Roll of his father maintained by the Record Office of Army. While the matriculation certificate furnished by the petitioner mentioned 15th May, 1982 to be his date of birth, the entry made in the Sheet Roll by the Record Office showed the petitioner's date of birth to be 10th September, 1984. There was, in that view, a discrepancy of more than 2 years in so far as the petitioner's date of birth was concerned. This was held by the respondents to be a major discrepancy keeping in view the instructions issued by the Army Headquarter resulting in the rejection of the petitioner's candidature for enrollment against the reserved category. He was accordingly shifted to the open category where he did not appear for the written examination. Aggrieved by the cancellation of his candidature against the reserved category, he has filed the present writ petition for a certiorari, as noticed earlier and also for a mandamus directing the respondents to enroll him for service as a clerk in the Army with consequential benefits.

4. Appearing for the petitioner, Mr. Gaur argued that the respondents were not justified in cancelling the candidature of the petitioner on the flimsy ground of there being a discrepancy in the date of birth as mentioned in the matriculation certificate and that mentioned by the Army Authorities in the Sheet Roll of his father. He submitted that the Army Authorities had in terms of the procedure stipulated by them accepted that the name, surname and the date of birth of a candidate as given in his matriculation certificate would be taken as conclusive. There was, in that view, no justification for the respondents to depart from that procedure in the case of the petitioner and reject his candidature on the ground that there was a discrepancy in the date of birth mentioned in the matriculation certificate and that recorded in the records of the office of Army.

5. On behalf of the respondents, it was on the other hand argued that the claim made by a candidate for the benefit of a reserved category had to be bona fide and that the bona fides of the claim would in turn depend upon whether there was any discrepancy in his name and date of birth as given in the matriculation certificate and those mentioned in the Record Office of the Army. It was submitted that since a large number of false claims for benefit of the reservation made for ex-serviceman or those who are still in service had been made before the Army, a procedure had been evolved by which any discrepancy in the date of birth up to a period of one year was held to be a minor discrepancy whereas any discrepancy beyond one year as in the instant case would be a major discrepancy disentitling the candidate to the benefit of reservation. The petitioner had, in the instant case, a major discrepancy in the date of his birth as given in the matriculation certificate and that given in the Sheet Roll maintained by the Record Office. It was also argued that the petitioner had failed to furnish an affidavit stating that his date of birth mentioned in the matriculation certificate was the true and correct date of his birth.

6. We have given our anxious consideration to the submissions made at the bar and perused the record. The material facts are not in dispute. It is not in dispute that children of serving army personnel or ex-servicemen are entitled to benefit of reservation for purposes of employment. It is also not in dispute that the petitioner's father Sh. Lillu Ram (Lillu Singh) was an ex-serviceman. The fact that the petitioner is the son of Sh. Lillu Ram, the ex-serviceman is also not disputed. All that is still made a basis for cancellation of the petitioner's candidature is a discrepancy found in the date of his birth as mentioned in the matriculation certificate and that mentioned in the Sheet Roll of his father by the Record Office of the Army. This discrepancy is, in our view, wholly inconsequential so long as it is admitted that the petitioner indeed is the son of Sh. Lillu Ram. It was at no stage suggested either by the respondents or by the counsel appearing for them before us that the parentage of the petitioner was in doubt. That is not the ground on which the petitioner's candidature has been cancelled by the Army. Such being the position, the question is how far was the Army justified in rejecting the petitioner's claim for reservation only because there was a discrepancy whether minor or major in his recorded date of birth. The answer to that question would, in our opinion, be provided by the instructions issued by the Army itself, which are to the following effect:

In case there is a variation in particulars of candidate who claim to be SOWW/SOW/SOES/SOS for the purposes of entitlement of relaxation in physical standards and bonus marks for overall merit, the under mentioned will be followed:

(a) The particulars of age, name of the father and date of birth as listed in the Education Certificate will be taken as final for the purpose of enrollment.

(b) In case of a variation in the individual's name, father's name/mother's name, surname, date of birth etc. as shown on the Education certificate of the candidate vis-a-vis the documents of the Serving Soldier/Ex-Servicemen/Widow/bonafides will need to be established. For the claimant of non-judicial Stamp Paper duly countersigned by the Executive Magistrate Class I will be submitted before he is granted the said relaxation in physical standard and bonus marks for overall merit.

(c) The above affidavit will be summarized by the father of the individual or mother in case of a widow. Further if the candidate is 18 years and above he will be required to submit the affidavit.

(d) The affidavit will bring out correct name of the candidate, date of birth and father's name with rank and Army Number highlighting that the person shown in Education Certificate is the same person as shown in the documents provided by the Regt Records and that if any contrary fact comes later to light the individual will be held accountable and the services of the candidate will be terminated in addition to legal action.

(e) In case he cannot provide the affidavit no benefit whatsoever shall be granted and the individual will be processed as an open candidate.

7. A perusal of the above would show that the particulars of age, father's name and date of birth as listed in the Education Certificate has to be taken as final for purposes of enrollment. This is evident from para (a) of the Army instructions extracted above. If that be so, the fact that the Sheet Roll of the ex-servicemen as maintained in the Records Office of the Army mentions a different date of birth becomes inconsequential especially when the respondents do not suggest that there is any defect or discrepancy in the description of the parentage of the candidate as given in the matriculation certificate or as mentioned in the Sheet Roll. It is not clear from a perusal of the Sheet Roll, a copy whereof has been produced by the respondents, as to when were the entries in the same actually made nor is it clear as to who have made the said entries, on what basis and at whose instance. The material including any document or declaration on the basis of which the entries have been made in the Sheet Roll is also not mentioned or referred to in the document nor does the same bear the signatures of the officer who had made the said entries. The document enclosed with the Counter Affidavit is no doubt authenticated by the senior record officer but that is only a signature in token of his having taken the entries from the original record. The original record has not been produced before us. In any event, if the original record contained any indication of who had made the entries, the officer preparing a true copy of the same would have transcribed the same on the copy issued by him. Suffice it to say that in the absence of any evidence to show that the entries in the Sheet Roll were made at the instance of the father of the petitioner and were faithfully recorded as per his declaration, it is difficult to see how any error committed by the Record Office in describing the date of birth of the petitioner would have been made a basis for denying to him the benefit of reservation. Even assuming that the entries have been made as per the declaration of the petitioner's father, as between the entries made in the matriculation certificate and those made in the Sheet Roll, the entries made in the matriculation certificate have to take primacy. That position is evident from the instructions issued by the Army extracted earlier. We have, therefore, no hesitation in holding that the respondents were not justified in cancelling the candidature of the petitioner merely because they had noticed a discrepancy between the matriculation certificate furnished by the petitioner and the Sheet Roll to which he was not a party.

8. The fact that the petitioner could have put the doubt if any regarding his true date of birth to rest by filing an affidavit is yet another reason why the so called discrepancy should be deemed to have been satisfactorily resolved once an affidavit supporting the matriculation certificate is furnished to the Army. Learned Counsel for the petitioner submitted that the petitioner was and continues to be ready and willing to furnish such an affidavit to the Army authorities. That being so the date of birth as given in the matriculation certificate and supported by an affidavit of the petitioner should resolve the matter in favor of the date mentioned in the said certificate being the correct date.

9. This writ petition accordingly succeeds and is hereby allowed. The impugned order dated 29th January, 2004 rejecting the petitioner's candidature for enrollment as a clerk in the Army is hereby quashed with a direction to the respondents that the petitioner shall be considered against an available vacancy in the Unit Headquarter Quota in accordance with the norms and Regulations, if any, prescribed for the purpose. The petitioner shall, as and when called upon by the respondents, furnish an affidavit in the manner and the format prescribed by them in support of his claim that he was born on 15th May, 1982 as mentioned in the matriculation certificate.

10. No Costs.