Union Of India vs Mr.D.R.Dhingra & Anr.
2011 Latest Caselaw 1072 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              W.P.(C) No.11685/2009

%                          Date of Decision:   23.02.2011

Union of India                                               .... Petitioner
                          Through Mr.S.K.Dubey         and   Mr.Tongesh,
                                  Advocates.

                                      Versus

Mr.D.R.Dhingra & Anr.                            .... Respondents
                   Through Mr.Mukul Rohtagi, Sr.Advocate with
                           Mr.A.K.Behera       &     Mr.Ramesh
                           Gopinathan, Advocates for respondent
                           no.1.
                           Mr.Manjit    Singh,   Advocate   for
                           respondent. No.2.

                                       AND

+                                W.P(C) No.11694/2009

Mr.D.R.Dhingra                                          .... Petitioner
                         Through Mr.Mukul Rohtagi, Sr.Advocate with
                                 Mr.A.K.Behera      &    Mr.Ramesh
                                 Gopinathan, Advocates.

                                      Versus

Union of India & Anr.                               .... Respondents
                    Through Mr.S.K.Dubey and Mr.Tongesh,
                            Advocates for respondent No.1.
                            Mr.Manjit     Singh,    Advocate   for
                            respondent. No.2.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS.JUSTICE VEENA BIRBAL

1.       Whether reporters of Local papers may               YES
         be allowed to see the judgment?
2.       To be referred to the reporter or not?              YES
3.       Whether the judgment should be                      YES
         reported in the Digest?

WP(C) 11685/2009 & WP(C) 11694/2009                           Page 1 of 53
 ANIL KUMAR, J.

*

1. These writ petitions are against the orders dated 4th August, 2009

passed by the Principal Bench, Central Administrative Tribunal in O.A

No.1267/2008 titled „D.R. Dhingra v. Union of India and Anr‟ holding

that the date of birth of Sh.D.R.Dhingra (hereinafter referred to as

applicant) is 6th May, 1952 and not 6th May, 1948. The Tribunal has

held that though there is no bonafide clerical mistake as contemplated

under Rule 16A of the All India Services (Death-cum-Retirement

Benefits) Rules, 1958, however, the tribunal deemed the case of the

applicant as a rarest of rare case, and thus directed the Central

Government to consider the applicability of Rule 3 of the All India

Services (Conditions of Service-Residuary Matters) Rules, 1960 and to

take a decision whether or not, the applicant is entitled for dispensation

or relaxation of the requirement of rules or regulations on account of

undue hardship to him. The Tribunal, however, left it to the discretion

of the Union of India to continue or not to continue the applicant in

service and during the three weeks granted by it directed the

Government to decide the applicability of Rule 3 and if the Government

is of the view that in the facts and circumstances, the case does entail a

change in date of birth, then the period of three weeks be not treated as

an interruption in the service of the applicant. The Tribunal further

directed that in case the applicant succeeds then he be also given leave

of the kind due, as may be permissible under the rules.

2. The Union of India has challenged the impugned order dated 4th

August, 2009 of the Tribunal in Civil Writ Petition No.11685/2009

challenging the date of birth of the applicant as 6th May, 1952 and the

direction of the Tribunal to consider the case of the applicant under

Rule 3 of the All India Services (Conditions of Service-Residuary

Matters) Rules, 1960 whereas the applicant has also challenged the

order of the Tribunal in his writ petition being W.P(C) No.11694/2009

seeking direction to Union of India to continue the applicant in service

in accordance with his date of birth as 6th May, 1952 and to give all the

consequential benefits and direction to the UOI to issue and order after

getting extension of time for implementation of the order dated 4th

August, 2009, advising the Chief Secretary, State of Haryana not to

discontinue the services of the petitioner.

3. The facts in brief relevant for decision of writ petitions are as

follows. On 14th May, 1993 after the name of the applicant was

approved for selection from State Civil Services to Indian Administrative

Service, a representation dated 22nd May, 1993 was filed before the

Chief Secretary, Government of Haryana regarding alteration of his date

of birth contending inter-alia that the mother-in-law of his elder sister

Smt.Sheela Taneja had expired in April, 1993 and on the kriya

ceremony it transpired that his elder sister was born in the year 1951

being the first child out of the wedlock of his parents who got married in

the year 1949. He asserted that his elder sister Sheela was born on 21st

July, 1951 as per the certificate issued by District Registrar (Birth and

Death) Civil Surgeon, Rohtak. According to the applicant the birth

certificate also indicates that Sheela was the eldest child born to her

parents at Village Anwal, Police Station Kalanaur, Tehsil and District

Rohtak. His sister was admitted in the year 1960 in the first class in the

Government Girls Primary School at Village Anwal and her school

certificate and middle standard examination certificate indicated her

date of birth as 3rd March, 1951. The applicant contended that he is the

second child and as per the certificate of the Government Primary

School, Anwal he was born on 6th May, 1952 which is also the date of

birth in the certificate issued by the Headmaster, Government High

School, Lahli, which is also the date of birth reflected by the certificate

issued by the District Education Officer, Rohtak for middle standard

examination. The applicant also contended that the office of District

Registrar (Births and Deaths) Civil Surgeon, Rohtak failed to supply his

birth certificate, rather issued "not to be found" certificate for the year

1948-50 and 1952-54. According to the applicant therefore, his date of

birth as recorded in the service record as 6th May, 1948 cannot be

correct as he being the second child, his year of birth should be

between 1951-1955 as the first child to his parents was born in 1951

and the child younger to him was born in 1955. The incorrect date of

birth in the matriculation certificate in his opinion was on account of

some act of commission and omission of the teacher filling up the form

of Matriculation Examination. The applicant further pleaded that his

younger brother Manohar Lal whose name is recorded as Vishan Dass

in the certificate issued by District Registrar (Births and Deaths) Civil

Surgeon, Rohtak was born on 26th November, 1955. The certificate also

discloses that his brother Manohar Lal was the third child. His

brother‟s high school certificate shows his date of birth as 6th April,

1955. In the case of his younger brother and younger sister though

there are variations in the date and month in the various records,

however, the order is the same. The applicant, therefore, contended that

his date of birth is 6th May, 1952 and not 6th May, 1948 as he could not

have been born prior to the marriage of his parents in the year 1949.

4. The first representation of the applicant was rejected and

communicated by letter dated 12th July, 1993 by the Under Secretary

(Administration) on behalf of the Chief Secretary to the Government of

Haryana stating that the applicant first entered into the Government

service as Assistant Registrar Cooperative Societies, Haryana on the

basis of the date of birth recorded in the Matriculation Certificate as 6th

May, 1948. Had the date of birth of the applicant being 6th May, 1952

he would not have been eligible for appointment to the said post. It was

further stated that since the applicant has already availed the benefit in

the matter of entry into service on the basis of the date of birth recorded

in the matriculation certificate, the applicant is estopped from stating

that his correct date of birth is 6th May, 1952 and, therefore, his request

for changing the date of birth from 6th May, 1948 to 6th May, 1952 was

rejected.

5. The applicant had moved the Punjab University for change of his

date of birth in his Matriculation Certificate from 6th May, 1948 to 6th

May, 1952 which was allowed by the University in its syndicate

proceedings held on 20th January, 1997 and a revised matriculation

certificate changing the date of birth from 6th May, 1948 to 6th May,

1952 was issued. Consequent thereto the applicant filed another

representation dated 27th March, 1997 to the Chief Secretary,

Government of Haryana.

6. Another representation of the applicant was rejected by

Department of Personnel and Training by communication reference

No.F.No.25015/3/97-AIS-II dated 19th May, 1997 stating that as per

Rules 16A (3) of AIS (DCRB) Rules, 1958 change of date of birth in

service records of an IAS officer is not to be allowed unless there is a

bonafide clerical mistake in accepting the date of birth as per sub rule

(2) or (3) of Rule 16A of AIS (DCRB) Rules. While rejecting the

representation of the applicant, reference was also made to the decision

of the Tribunal, Principal Bench in case of Deshraj Singh v. Union of

India in O.A No.1789/1990 stipulating that even a complete certificate

indicating the entry of birth in the register of births and deaths cannot

shake the date of birth once it has been accepted in accordance with

the statutory rules. It was further stated that if anybody after taking

advantage of the date of birth recorded in the High

School/Matriculation Certificate secures employment, such a person

cannot claim change of date of birth and in the circumstances there is

no bonafide clerical mistake in accepting the date of birth as 6th May,

1948 and the second representation of the applicant was also rejected.

7. After rejection of applicant‟s second representation by

communication dated 19.5.1997, the applicant remained dormant for

ten years. Ten years after the rejection of his second representation, the

applicant made a third representation to the Chief Secretary,

Government of Haryana which was forwarded by the State Government

to the Government of India, Ministry of Personnel by communication

dated 26th July, 2007. In the third representation dated nil made by the

applicant he reiterated the facts as disclosed by him in the first and

second representations of 1993 and 1997 respectively and further

contended that the rejection of his representation on the premise that

he had also taken the advantage of his recorded date of birth 6th May,

1948 while getting employment in the State Government according to

rules, is not correct.

8. The petitioner disclosed that advertisement was issued in

October, 1972 for holding Haryana Civil Service (Executive Branch) and

other allied services Examination which was to be held in March, 1973.

He passed the examination held in June, 1973 and was called for an

interview on 7th February, 1974. The post for Assistant Registrar

Cooperative Society in 1974 was governed by Punjab State Cooperative

Service Class II, Rules, 1958. Rule 6 (b) of the said rules provided for

qualification of the candidates by direct recruitment which provided

eligibility condition of 21 years and not more than 25 years on the first

of October preceding the date on which he was interviewed by the

Commission. According to the applicant his age, therefore, should not

have been less than 21 years on 1st October, 1973 and more than 25

years on that date, as the interview was held on 7th February, 1974.

According to him by taking into account his proposed date of birth as

6th May, 1952 also, he was more than 21 years of age on the relevant

date and eligible for appointment. Therefore, he had not taken any

benefit of giving the wrong date of birth as 6th May, 1948 because with

his allegedly correct date of birth also he would have been eligible for

appointment to the post of Assistant Registrar Cooperative Societies. He

further stated that after selection to the post of Assistant Registrar, Co-

operative Society he underwent training for 2 years but before the

completion of training he competed for HCS (EB) Examination held in

the year 1974 and was selected and appointed to Haryana Civil Service.

In the circumstances, it was stated that he was never appointed as

Assistant Registrar, Cooperative Societies. The advertisement issued by

the Haryana Civil Service Commission was, however, not produced

contending that in any case it is irrelevant as any age limit prescribed

in the advertisement contrary to the rules would be a nullity.

9. The applicant‟s plea was that rejection of his earlier

representation appeared to be on the basis of rules of 1997 i.e the

Haryana State Cooperative (Group B) Service Rules, 1997. Rule 5 of the

1997 Rules contemplate that no person shall be appointed in the

service by direct recruitment who was less than 21 years or more than

35 years of age on or before the last date of submission of application to

the commission. In the circumstances, in his third representation of

2007 the applicant contended that as per his wrong date of birth he

would retire on 31st May, 2008 though he is legally entitled to work

upto 31st May, 2012 and, therefore, he sought change of his date of

birth.

10. The third representation of the applicant was also rejected by the

Government of India by letter reference No.25015/3/97-AIS (II) dated

7th September, 2007 on the ground that in view of provision of Rule

16A of AIS (DCRB) Rules, 1958 it is not established that a bonafide

clerical error has been committed in accepting the date of birth under

sub Rule (3) of Rule 16A and, therefore, the request of the applicant for

change of date of birth from 6th May, 1948 to 6th May, 1952 was not

accepted.

11. Aggrieved by the rejection of the representation by

communication dated 7th September, 2007, the applicant filed a petition

before Central Administrative Tribunal, Principal Bench being O.A

No.2207/2007 titled „Sh.D.R.Dhingra v. Union of India‟ which was

disposed of by order dated 13th March, 2008 remitting the matter back

to the Government of India to re-examine the same in the context of the

observations made in the order dated 13th March, 2008 and in the light

of the decision of the Apex Court in S.Janardhana Rao v. Government of

A.P and anr., (1999) SCC (L&S) 653 and Union of India vs. C. Rama

Swamy, (1997) 4 SCC 547.

12. Pursuant to order dated 13th March, 2008 the Government of

India passed the order dated 27th May, 2008 relying on Rule 16A of the

AIS (DCRB) Rules, 1958 holding that change of date of birth in the

service records of an IAS Officer is not be allowed unless there is a

bonafide clerical mistake in accepting the date of birth as per sub Rule

(2) or (3) of the said rule. The communication dated 27th May, 2008 also

relied on the uniform policy of the Central Government that the date of

birth once entered by the concerned officer in the service record is not

to be changed on any ground at all except if there was some clerical

mistake while entering the date of birth. Any subsequent change in the

source of information regarding date of birth does not make it

incumbent for the Government of India to make consequential changes

in the service records. The judgments in reference to which the

representation was to be reconsidered were considered and were found

to be distinguishable. The Government of India noticed that in case of

C.Ramaswamy (supra), the candidate was a direct recruit to IAS

whereas the applicant was appointed from the State Civil Service under

the IAS (Appointment by Promotion) Regulation and was an officer of

the State Civil Service. Relying on various other orders of the Supreme

Court and the Tribunal it was held that correction of date of birth or

alteration was not to be allowed at the fag end of service or after

considerable period on entering the service, as it would disturb the

entire cadre management and as a result thereof continuation of an

officer further would have far reaching implications and shall affect the

service conditions of other officers including the juniors. Reliance was

placed on Tribunal‟s order dated 2nd April, 2008 in O.A No.573/2008,

Smt.Surjit Kaur Sandhu v. Union of India holding that matriculation

certificate is not the sole criterion under All India Service Rules to

determine the date of birth. It was also held that the selection

committee constituted under Regulation 3 of the Indian Administrative

Service (Appointment by Promotion) Regulation, 1955 held on 30th

March, 1993, had prepared a list of candidates including the applicant

where the date of birth of the applicant was recorded as 6th May, 1948

whereas the applicant made representation to the State Government for

change of his date of birth on 22nd May, 1993, two months after the

meeting of the selection committee held on 30th March, 1993. The UPSC

had also approved the recommendations of Selection Committee on 14th

May, 1993 prior to the representation of the applicant and the applicant

had not represented either to the State Government before the meeting

of the Selection Committee or before the approval of the

recommendation of the Selection Committee by UPSC on 14th May,

1993 despite being in the State Civil Service since 1st July, 1976.

Therefore the alteration was not allowed after considerable period of

entering the State service as it would have disturbed the cadre

management and as a result thereof continuation of applicant further

would have had far reaching implications and would have affected the

service conditions of other officers including the juniors. In the

circumstances, the Government of India held that the representation of

the applicant for change of his date of birth could not be said to be

pending with the Government on the date relevant for acceptance of

date of birth and could not be allowed.

13. The case of S. Janardhana Rao (supra) was also found to be

distinguishable as in that case the date of birth of the candidate had

been changed by the State Government prior to the meeting of the

selection Committee for inclusion of the name of the candidate in the

select list. However, instead of correct date of birth, incorrect date of

birth was communicated whereas in the case of applicant no

representation was even pending on the date of the selection Committee

meeting. In the case of S.Janardhana Rao before the proposal was sent

for promotion to IAS, the State Government had corrected the service

book of that candidate and consequently it had been held that on the

ratio of S.Janardhana Rao‟s case the applicant is not entitled for change

of date of birth, as the State Government did not change his date of

birth before his case was referred to the Central Government. Thus on

reconsideration of the representation of applicant pursuant to order

dated 13th March, 2008 of the Tribunal, the change of date of birth was

again declined by order dated 27th May, 2008.

14. Pursuant to rejection of change of date of birth of the applicant by

order dated 27th May, 2008, an order dated 30th May, 2008 was issued

retiring the applicant from the service. The applicant filed an original

application being O.A No. 1267/2008 where an interim order dated 17th

June, 2008 was passed and the order dated 27th May, 2008 of the

Department of Personnel and Training as well as order dated 30th May,

2008 retiring the applicant from service were stayed till 1st July, 2008.

15. The Tribunal has allowed the Original application of the applicant

holding that the case of the applicant is a rarest of rare case, as he has

produced irrefutable and unimpeachable evidence showing that his date

of birth recorded in the official record is incorrect. Despite all other

authorities accepting his stand based on the evidence produced by the

applicant, even the State of Haryana recommending by a detailed

communication supporting the case of the applicant, the Government of

India has declined to change the date of birth on the rigor of Rule 16A

of the All India Service (Death Cum Retirement Benefits) Rules, 1958.

The Tribunal held that with regard to the actual date of birth there is

hardly any doubt about the date of birth of the applicant. It was held

that the case of the applicant is not such where an employee comes on

some imaginary stories like coming to know of their correct date of birth

from their old or grown up relations or from their family purohits. But

the applicant has been able to bring on record and to the satisfaction of

all concerned, be it the Punjab University or the State Government,

irrefutable evidence of his actual date of birth being 6th May, 1952. The

Tribunal also held that the parents of the applicant got married in

November, 1949 and his elder sister was born on 21st July, 1951,

therefore, the date of birth of 6th May, 1948 as recorded in the original

matriculation certificate of the applicant, could not be correct as he

could not have been born before his parents were married and before

his elder sister was born. Thus the applicant brought on record all the

conceivable certificates up to the middle standard which too he had

passed from the State Education Board which are more than 30 years

old and hence has the presumption of truth under Section 90 of the

Evidence Act. The Tribunal further held that the birth and death

certificates as also middle school examination certificate were in the

custody of such authorities which, in the nature of their duties, carry

out such purpose. Hence it was concluded that the said certificates

were given by the proper authorities and would meet the requirement

under section 90 of the Evidence Act. According to the Tribunal on the

basis of pleadings made in the application and the documents, a firm

finding has to be recorded that the applicant had produced irrefutable

and unimpeachable evidence that he was actually born on 6th May,

1952 and not on 6th May, 1948 and, therefore, the date of birth being

6th May, 1952 had become a non issue.

16. The Tribunal by impugned order, however, held that the correct

procedure as envisaged under Rule 16A of the 1958 Rules of not

accepting the date of birth was adopted and no bonafide clerical

mistake had been committed in accepting the date of birth of the

applicant as 6th May, 1948. The plea of the applicant that the order of

the Government of India dated 27th May, 2008 was in contrast to the

judicial precedent of Supreme Court in S.Janardhana Rao (Supra) was

repelled. The plea of the applicant that while deciding his earlier O.A

2207/2007, the Tribunal had given a conclusive finding was also

repelled holding that if the findings given in the earlier original

application filed by the applicant by the Tribunal were final, there was

no need to remit the matter to the authorities concerned.

17. The Tribunal dealing with the issue of delay or inaction on the

part of the applicant held that the issue had been raised only during the

course of the argument and change of date of birth has not been

rejected on the basis of delay. It was held that in the reply filed on

behalf of Government of India there was no plea with regard to the

applicant acting late in the matter of correction of his date of birth.

According to the Tribunal in the case of the applicant, it is not that he

had hit upon an idea to get a change in his date of birth close to his

retirement, instead as soon as he came to know about the discrepancy

in his date of birth record in his matriculation certificate, he moved the

Punjab University for correction of his date of birth in the matriculation

certificate and the decision was taken in the syndicate meeting held on

20th January, 1997. Applicant even prior to that day had made a

representation on 22nd May, 1993 to the Chief Secretary Haryana. The

Tribunal also noted that had the plea of delay been determined at any

stage, the applicant would have explained that he was not aware of the

difference in rules applicable when he came to be appointed and the

rules on the basis of which it was said that the applicant had taken

advantage of his wrong date of birth in securing the Government

employment as the Assistant Registrar Cooperative Societies. It has also

been held that applicant is not in the kind of service that he would have

naturally known in the course of his duties the rule position and,

therefore, the third representation made after 10 years of the second

representation was held to be justified and, therefore, rejection of

change of date of birth on the ground of delay was not acceded to.

18. Tribunal after returning the finding that the actual date of birth of

the applicant is 6th May, 1952 and not 6th May, 1948 relying on the

alleged irrefutable and or impeachable evidence produced by the

applicant further held that it is a rarest of rare case. Since the applicant

had not taken advantage of his wrong date of birth for securing the

Government employment, therefore, rejection of his representation in

1993 and 1997 was incorrect as his representations were rejected on

the wrong premise that he had taken advantage of his wrong date of

birth and that he was ineligible in 1974 for the appointment to the post

of Assistant Registrar, Cooperative Societies on the basis of his date of

birth of 6th May, 1952. Since the evidence produced by the applicant

has been held to be irrefutable, the Tribunal considered whether the

rigor of Rule 16A of Rules of 1958 can be relaxed or not. In view of Rule

3 of the All India Services (Conditions of Service-Residuary Matters)

Rules, 1960 the Tribunal has deemed it to be a case which requires

consideration by the Government of India and, therefore, has directed

the Government of India to consider the applicability of Rule 3 on the

ground that the case of the applicant appears to be a rarest of rare case

where the employee has proved to the hilt that his date of birth is

incorrect and allowed his original application to this limited extent.

19. The order of the Tribunal has been challenged by the Government

of India inter alia on the following grounds. Learned counsel for the

petitioner has vehemently argued that the tribunal has gravely erred in

its finding that the present matter of the applicant is a rarest of rare

case and hence the petitioners are required to reconsider the plea of the

applicant under Rule 3 of the All India Services (Condition of Service-

Residuary Matters) Rules 1960. It is alleged that the tribunal has

completely ignored the law on the subject, on both counts namely the

statutory rules enumerated in Rule 16 A which does not permit the

change of date of birth except on account of a bonafide clerical mistake,

a change which would have a cascading adverse effect on other

employees, public interest vis-à-vis individual interest and that neither

the requirement of rule 3 are applicable in the case of applicant nor the

applicant had made such a request or prayer before the government or

even before the Learned Tribunal.

20. The learned counsel for the Union of India Mr. Dubey has

contended that even the Tribunal came to the conclusion that the

correct procedure as envisaged under Rule-16A of the Rules of 1958

was adopted and while doing so, no bonafide clerical mistake had been

committed in accepting the date of birth. According to the learned

counsel once the Tribunal has given the finding that there has not been

any bonafide clerical mistake under Rule 16A of 1958 Rules, direction

could not be given to the petitioner to consider the matter for giving

relaxation under Rule 3(ii) of the All India Services (Conditions of

Service-Residuary Matters) Rule, 1960 to relax Rule 16A on account of

alleged undue hardship and alter the date of birth of the applicant.

21. According to the learned counsel the power under Rule-3 is an

enabling power of the Central Govt. which on consideration of facts in

an appropriate case, may, grant relief, any relaxation of certain

provisions of the Rules or the Regulations made under All India Service

Act. According to him, Union of India has raised in Ground (G) of the

petition, the challenge to the change of date of birth of the respondent.

Representations after a lapse of 17 long years in the service in the

government by the applicant for a change of his date of birth from 6th

May, 1948 to 6th May, 1952 on the ground that his parents got married

in 1949 and his elder sister was born on 21st July, 1951 and that in

1993, on the death of the mother-in-law of his elder sister, he came to

know about these facts and therefore, his correct date of birth on the

basis of the documents collected by him is 6th May, 1952 and not

changing his date of birth will cause undue hardship, is without any

factual and legal basis.

22. In view of the ex facie evident facts that the applicant is an officer

qualified as MA, LL.B and worked as a civil servant in state services for

45 years and is the eldest male child, learned counsel contends that it

is incomprehensible to accept that he wasn‟t aware of the alleged

mistake in his date of birth as recorded in the service record for the 17

years he spent in service. That the date of birth of the applicant being

6.5.1948 as recorded in his service record, was furnished by him with

his academic testimonials since 1976, pursuant to his appointment in

Haryana Civil Service (Executive) and also recorded in the Matriculation

Certificate issued by the Punjab University, produced by the applicant

at the time of his selection to the post of Assistant Registrar, Co-

operative Society, Haryana. Thereafter on his selection in the Haryana

State Civil Service (Executive) at the administrative level for nearly 17

years from his joining the civil services in State of Haryana and

approximately 45 years from his date of birth, the respondent did not

complain or make any representation with regard to the alleged

incorrect date of birth i. e. 6.5.1948 as appearing in the service book

and his academic record. In March, 1993 the name of the applicant was

included in the select list for promotion to the All India Civil Services

(IAS) along with the other officers of the State of Haryana. In May 1993

UPSC had held DPC where his name was recommended for the

promotion to the All India Civil Services (IAS) and it is only then that

the applicant had made his first application on 22nd May 1993 for

change of date of birth from 6.5.1948 to 6.5.1952. After the rejection of

his first two representations in 1993 and 1997, the third application

was only made in the year 2007 when the respondent was due to retire

on 31st May 2008, at the fag end of his service. The first representation

to the State Government was in the circumstances after considerable

period after entering the State service, rather at the fag end of State

Service. It was contended that under the rules of the State Government,

the applicant would not have been entitled for change of his date of

birth after 17 years of entering the service. Hence it was contended that

the applicant cannot be allowed to take advantage of his own wrong in

the facts and circumstances of the present case, where such mistake is

not bonafide.

23. It is also contended that Rule 16 of the All India Service (Death

Cum Retirement Benefit) Rules 1958 permits only correction of date of

birth in cases of bonafide clerical mistake, while Rule 3(ii) of the All

India Services (Conditions of Service Residuary Matters) Rules clearly

states that any regulation made under any such rule, regulating the

conditions of service of persons appointed to All India Service causes

undue hardship in any particular case, it may, by order, dispense or

relax the requirements of the rule or regulation, as the case may be, to

such extent and subject to such exceptions and conditions as it may

consider necessary for dealing with the case in a just and equitable

manner. "Undue hardship" signifies unforeseen or unmerited hardship

to an extent not contemplated when the rule was framed and does not

cover any ordinary hardship or inconvenience which normally arises.

This also undoubtedly implies the reasonable care to be taken on the

part of the party alleging undue hardship. In the facts and

circumstances it is evident that the undue hardship caused is due to

the negligence or mistake on the part of the applicant himself for which

the government cannot be held responsible.

24. The bare reading of Rule 16 makes it clear that the said Rule is

made to limit the scope of correction of date of birth and service record

and the intent of the rule is to exclude all other circumstances for the

said purpose. The benefit to alleviate the undue hardship of relaxation

of any rule or rules must be of a nature already provided for in the

rules. Government is not empowered by this rule to confer benefits

which are not contemplated in the rules. Therefore the impugned order

of the tribunal is apparently erroneous, illegal and contrary to the

mandate of law and the intent and purposes of All India Services

(Condition of Service- Residuary matters) Rules 1960 as well as All

India Services (Death cum retirement Benefit) Rules 1958.

25. It has been further contended that the order of the Tribunal is

bound to have a delirious effect of overriding and upsetting the service

record maintained in the due course of administration for promotion/

appointment to All India Services and seniority thereof. The impugned

order of the tribunal is contrary to the public interest and virtually

makes the statutory provisions i.e. Rule 16 of the All India Services

(Death cum Retirement) Rules 1958 totally ineffective and non

applicable.

26. Regarding the non applicability of Rule 3 of the residuary rules

the learned counsel Mr. Dubey has relied on (1993 )3SCC575, Syed

Khalid Rizvi and Ors. & Ramesh Prasad Singh and Ors. Vs. Union of

India (UOI) and Ors & Krishna Behari Srivastava Vs. State of U.P. and

Anr; (1979) 3 SCC 553, D.D.Suri Vs Union of India (UOI) & Anr.; (1980)

3 SCC 402, R.R.Verma & Ors. Vs Union of India & Ors.;

MANU/MS/0153/2008, R.R.Tripathi and Gaurang Dinesh Damani Vs

Union of India through Secretary, Ministry of Home Affairs & Ors.

According to learned counsel for the Union of India mere assertion of

`undue hardship is not sufficient and has relied on 2009 (160) DLT 238,

Priya Shah Vs Enforcement Directorate, New Delhi. Reliance has also

been placed on (2001) 9 SCC 230, Union of India Vs M.S.Heble

(deceased) through LRs where Supreme Court had set aside the order of

Tribunal invoking Rule 3 All India Services (Condition of Service-

Residuary Matters) Rules, 1960.

27. The learned counsel for the Union of India has also relied on

(2010) 9 SCC 337, State of Haryana Vs Satish Kumar Mittal and anr. to

contend that under the rules of State Government the claim of the

applicant seeking alteration of date of birth could not be entertained

after 19 years and since the record of the Union of India is based on the

date of birth recorded in the record of the State Government, the same

cannot be done and the Tribunal could not have given a direction to

treat it as rarest of rare cases and apply Rule 3 of the All India Services

(Conditions of Service-Residuary Matters) Rules, 1960 and to take a

decision whether the applicant is entitled for dispensation or relaxation

of the requirement of rules or regulations on account of undue

hardship.

28. The learned counsel for the Union of India has also relied on

(1993) Sup.1 SCC 763, Executive Engineer, Bhadrak (R&B) Division,

Orissa and Ors. v. Rangadhar Mallik; (1993) 2 SCC 162 Union of India

v. Harnam Singh; (2000) 8 SCC 696 G.M.Bharat Coking Coal Ltd.,

West Bengal v. Shib Kumar Dushad & Ors.; (2003) 6 SCC 483 State of

U.P. & Others v. Gulaichi; (2004) 3 SCC 394, State of Punjab v.

S.C.Chaddha; (2005) 6 SCC 49 State of Punjab & Anr. v. Shiv Narayan

Upadhyay; (2005) 11 SCC 465 UP Madhyamik Shiksha Parishad & Anr.

v. Raj Kumar Agnihotri; (2006) 6 SCC 537 State of Gujarat v. Vali

Mohammed Dosa Bhai Sindhi; (1997) 4 SCC 647 Union of India v.

C.Ramaswami & Others in support of its pleas and contentions.

29. Per contra the learned counsel for the applicant contended that

two fold reliefs have been claimed by the applicant, which are setting

aside the impugned orders dated 27.5.2008 and 30.05.2008 and to

correct the date of birth of the applicant as 6.5.1952 and to give all the

consequential benefits to the applicant.

30 The learned counsel for the applicant has contended that the

order dated 27th May 2008 is based on after thoughts and is contrary to

statutory rules, in as much the petitioners have declined to accept

6.5.1952 as the correct date of birth on the ground that as on 30th

March 1993 when the Selection Committee meeting was held to

consider the petitioner for promotion, no representation regarding the

date of birth had been preferred by the petitioner. It is contended that it

is not the Selection Committee but the Central Government who accepts

the date of birth. It is an admitted position that the proposal relating to

the promotion of the respondent was sent by the State Government only

on 8th July 1993 and by that time the representation of the petitioner

regarding the date of birth was pending with the State Government.

Thus the natural inference would be that the occasion for accepting the

date of birth would arise only after 8th July 1993 and not before that.

In support of this submission the learned counsel for the respondents

has relied on Rule 16 A of the All India Services (Death-Cum -

Retirement Benefits) Rules 1958 which clearly stipulates in clause (1):

"For the purpose of determination of the date of superannuation of a member of the service, such date shall be calculated with reference to the date of birth as accepted by the Central Government under this rule"

31. The learned counsel for the respondent has also relied on the

comments given by the State Government to his third representation

made in the year 2007 dated nil which is annexed with the letter date

28th June 2007 by the Chief Secretary, Government of Haryana,

addressed to the Secretary, Government of India, Ministry, which has

been heavily relied on by the Tribunal as well. The State government

had duly traced the history of the case referring to the earlier

representations made by the applicant and had given detailed reasons

for its finding that the applicant had submitted irrefutable proof of his

actual date of birth as being 6.5.1952 instead of 6.5.1948. It was also

stated therein that the respondent had not accrued any benefit in the

matter of securing employment in the Government on the basis of his

wrong date of birth. The learned counsel for the respondent further

contended that even though The State Government had found the

representation meritorious with the conclusion that the evidence

produced by the applicant for the correction of his date of birth was

irrefutable, and had even made the recommendation to the Government

of India for correction of his date of Birth in the official records, however

by order dated 9th August 2007, the State government could not do the

needful, as the service records were not in its possession and were

instead sent to the Government of India.

32. According to Mr. Rohtagi, Sr. advocate the declaration given by

The Tribunal on the basis of irrefutable and unimpeachable evidence,

that the date of birth of applicant is 6th May, 1952 has not even been

challenged by the Union of India. According to him the middle school

certificate and the marks sheet issued by the concerned authorities, the

date of birth has been shown as 6th May, 1952. He submitted that even

in earlier petition before Central Administrative Tribunal, Principal

Bench being O.A No.2207/2007 titled „Sh.D.R.Dhingra v. Union of

India‟ which was disposed of by order dated 13th March, 2008 remitting

the matter back to the Government of India to re-examine the same in

the context of the observations made in the order dated 13th March,

2008 and in the light of the decision of the Apex Court in S.Janardhana

Rao v. Government of A.P and Anr, (1999) SCC (L&S) 653 and Union of

India v. C. Rama Swamy, (1997) 4 SCC 547, the date of birth of the

applicant as 6th May, 1952 was not challenged nor in any of the

application the factum of the said date of birth has been denied.

33. According to learned senior counsel `undue hardship‟ has not

been defined in any of the judgments of Supreme Court in service

matters. The expression 'undue hardship' has to be construed in

normal circumstances and a natural meaning has to be given to the

said expression. According to him „undue‟ is unnecessary and

`hardship‟ is suffering. Since the factum of date of birth is not denied,

the three factors, retirement before the age of superannuation,

deprivation of salary, allowances and qualifying service before which the

applicant would be retired and the effect on his pension as the last

drawn salary is the determinant effect which would be lifelong, and

would therefore constitute 'undue hardship'.

34. This Court has heard the learned counsel for the parties in detail

and has also perused the record which was before the Tribunal and the

precedents relied on by the parties. Before analyzing the facts of the

case, the precedents relied on by the parties are considered.

35. In Executive Engineer, Bhadrak (R&B) Division, Orissa and Ors.

(Supra), the Supreme Court had held while dealing with Rule 65 of

Orissa General finance rule that correction in a date of birth cannot be

entertained at stage of superannuation and date of birth admitted in

service role shall be final. It was also held that while dealing with the

representation for alteration in change of date of birth, there was no

requirement of any law to give any personal hearing to any such

employee before dismissing his representation.

36. In Harnam Singh (Supra), the Apex Court was of the opinion that

those employees who were already in service prior to 1979 were obliged

to seek alteration within the maximum period of 5 years from the date

of coming into force of amended note in 1979. In this case, alteration

was sought in 1991 by the employee 35 years after his induction into

the service in 1956 during which period he had several occasions to see

service book, but he raised no objection regarding his date of birth and

therefore, in view of unexplained and inordinate delay and relying on

Fundamental Rule 56 (m) a note vide the alteration in the date of birth

was declined. A division Bench of this Court in the matter of

Sh.Y.P.Madan (WP(C) No.6821/2010) by order dated 24.01.2011 had

noticed the judgment of Supreme Court setting aside the direction given

to Government of Haryana for change of date of Birth. It was held:

19. In a recent judgment, the Supreme Court had set aside the decree granted in favor of the employee of Haryana Govt. directing the authorities to correct the date of birth of the employee, though the request was made 9 years after joining the service. Rules had contemplated that correction of date of birth could be sought within two years from joining the service. In this recent judgment State of Haryana Vs. Satish Kumar Mittal & Ors.,(2010 ) 9 SCC 337, the Supreme Court rather cautioned the Tribunal or the High Court that any application for correction of date of birth should not be dealt with keeping in view only the public servant concerned. The Apex Court was of the view that any 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 and some are likely to suffer irreparable injury, inasmuch as, because of the correction of date of birth, officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority, waiting for promotion may lose their promotions for ever.

20. According to the Supreme Court, the application for correction of date of birth is also to be looked into from the point of view of the concerned department and the employee engaged therein. No doubt, it is true that the respondent has since retired and in his case, alteration in the date of birth may not affect many employees, however, under the Rules prescribing the time limit during which the alteration can be carried out, no exceptions have been carved out that alteration in the date of birth can be carried out if the employee requesting the correction of the birth date has already retired. The Supreme Court has further held that unless a clear case on the basis of clinching material, which can be held to be conclusive in nature, is made out by the public servant and that too within a reasonable time as provided in the Rules governing the service, the Court or the Tribunal should not issue a direction or make a declaration on the basis of the materials which make such claim only plausible. The Supreme Court relied on para-7 of UOI Vs. Harnam Singh, (1993) 2 SCC 162with approval, which is as under:

"A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of 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 his 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 to 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 an 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..."

37. In G.M.Bharat Coking Coal Ltd. (supra), the employee had sought

alteration in the date of birth in the service record maintained by

employer after 20 years of service. The employee in this case had

subsequently obtained two certificates and claimed alteration in the

date of birth on the basis of the same. The High Court in exercise of its

jurisdiction under Article 226 of the Constitution of India had allowed

the writ petition directing the employer to change the date of birth.

Reversing the decision of the High Court it was held that core question

was whether two certificates subsequently obtained by the employee

should be accepted and the date of birth entered therein be taken as

conclusive. The Supreme Court further held that High Court in its writ

jurisdiction is not an appropriate forum for undertaking such enquiry

into the disputed questions of fact. The Supreme Court held that the

date of birth of an employee is not only important for the employee but

for the employer also. While determining the dispute in such matters

Courts should bear in mind that in change of date of birth long after

joining services, particularly when the employee is due to retire shortly

which will upset the date recorded in the service record maintained in

due course of administration should not generally be accepted. The

court was further of the view that the date of birth should not be dealt

by the tribunal or High Court keeping in view only the public servant

concerned as any direction for alteration in the date of birth of the

public servant concerned has chain reaction, inasmuch as others

waiting for years, below him for their respective promotion which is

affected in this process and some are likely to suffer irreparable injury,

inasmuch as, because of correction of the date of birth, the officer

concerned, continue in the office, in some cases for years within which

time many officers who are below him in seniority waiting for their

promotion may lose their promotion forever. The Supreme Court,

therefore, caution that the Court or the tribunal should therefore, be

slow in granting interim relief for continuation in service, unless prima

facie evidence or impeachable character is produced because if the

public servant succeeds he could always be compensated, but if he

fails, he would have enjoyed undeserved benefits of extended service

which would further cause injustice to his immediate juniors.

38. In S.C.Chaddha (Supra), an application filed by the employee

seeking change of date of birth within a period of two years as provided

under Punjab Civil Services Rules, Vol.-I, Part-1 was rejected, however,

the High Court allowed the change in date of birth on the ground of

request for change being made within the period permitted by the

amended rules. The Supreme Court had set aside the judgment of the

High Court and held that merely because an opportunity was granted to

a Government Employee to get his date of birth corrected, did not take

away the fact of inaction and continuing silence for the considerable

period, which de-horse the latches on the employee‟s part seriously

reflected the lack of bona fide in his claim. The Supreme Court had held

that no explanation by the employee as to why he did not go for

correction of date of birth on any occasion when he was employed in 7

or 8 institutions makes his claim doubtable.

39. In Shiv Narayan Upadhyay (Supra), the order of the High Court

directing alteration in the date of birth on account of non-production of

service record by the employer was set aside by the Supreme Court as

the service record of the employee showed his date of birth which also

bore the employee‟s signature. Similarly, in Rajkumar Agnihotri

(Supra), the employee‟s appeal for correction of his date of birth on the

basis that his date of birth was wrongly entered in High School

Certificate was allowed by the High Court, however, the order of the

High Court was set aside by the Supreme Court holding that there was

no conclusive proof which could lead to irresistible conclusion regarding

date of birth of the employee.

40. In Vali Mohammed Dosa Bhai Sindhi (Supra), while dealing

with the Rule 171 of the Bombay Civil Services Rules 1959, it was held

that under Rule 171 once an entry of age and date of birth has been

made in the service book, no alteration of the entry afterwards could be

allowed unless it was shown that entry was wrong for want of care on

the part some person, other than individual in question or was obvious

a clerical error.

41. In the circumstances, it was held that unless a clear case on the

basis of material which could held to be a conclusive in nature, was

made out by the employee and that to within a reasonable time

provided in the rules governing the services, the court or tribunal

should not issue a direction or make a declaration on the basis of the

material which make such claim only plausible. In the circumstances,

the judgment of a Division Bench directing alteration in the date of

birth was quashed by the Supreme Court.

42. In C.Ramaswami (Supra), the positive case put forth by the

employees was that it was after the demise of his mother that he has

discovered that his real date of birth was different than what was

recorded in that service record. The Supreme Court had held that even

in absence of statutory rules like 16 A, the principle of estoppel would

apply and authorities concerned would be justified in declining to alter

the date of birth and 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 would be to his advantage. Once having

secured entry into the service, possibly preference to other candidates,

the principle of estoppel would clearly be applicable and relief of change

of date of birth can be legitimately denied.

43. In Syed Khalid Rizvi (supra), the Supreme Court held that for

invoking Rule-3 of All India Services (Conditions of Service -Residuary

Matters) Rule, 1960 requirement is that there should be an

appointment to the service in accordance with rules, and by operation

of the rule, undue hardship has been caused, that too in an individual

case, the Central Govt., on its satisfaction of those conditions, has been

empowered to relieve such undue hardship by exercising the power to

relax the condition. It was further held that the conditions of

recruitment and conditions of service are distinct and the conditions of

appointment according to rules are preceded by condition of service.

The conditions of the recruitment cannot be relaxed but the condition of

service may be relaxed while exercising power under Rule-3.

44. The Supreme Court had also held that relaxation under Rule-3

would be a policy matter, which will be in the discretion of the

Executive and the Courts will not interfere and issue a direction to the

Govt. In R.R. Verma and Ors. (Supra), the challenge to the

constitutional validity of said Rule-3 was repelled and it was held that

the Central Govt. is vested with a reserve power under Rule-3 to deal

with unforeseen and unpredictable situations, and to relieve the Civil

servants from the infliction of undue hardship and to do justice and

equity. It was further held that it does not mean that the Central Govt.

is free to do what it likes, regardless of right or wrong; nor does it mean

that the Courts are powerless to correct them. The Central Govt. is

bound to exercise the power in the public interest with a view to secure

Civil servants of efficiency and integrity, and when and only when

undue hardship is caused by the application of the rules, the power to

relax is to be exercised in a just and equitable manner but, again, only

to the extent necessary for so dealing with the case.

45. Rule-3 of All India Services (Conditions of Service -Residuary

Matters) Rule, 1960 is as under:-

"3. Power to relax rules and regulations in certain cases- Where the Central Government is satisfied that the operation of-

(i) any rules made or deemed to have been made under the All India Services Act, 1951 (61 of 1951), or

(ii) any regulation made any such rule, regulating the conditions of service of persons appointed to an All India Service causes undue hardship in any particular case, it may, be order, dispense with or relax the requirements of that rule or regulations, as the case may be, to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner."

46. In RR Tripathi and Gaurang Dinesh Damani (Supra), the

Supreme Court had held that the essence of the Rule is the words

"causes undue hardship in any particular case". The word "undue

hardship" has to be given its literal meaning and should be understood

on its plain language. In para-29 of the said judgment, the Bombay

High Court had held that hardship essentially has reference to the

cadre of service, interest of service and least individual interest.

Relevant para-29 is as under;-

"29. Now, coming to the applicability of Rule 3 of the Rules, 1960, this Rule certainly vests the Central Government with the power to relax rules and regulations in certain cases. Exercise of such power to relax the requirement of the rule or regulation to such extent and to such exception and conditions as it may consider necessary for dealing with the case must be in a just and equitable manner. The essence of the Rule is the words "causes undue hardship in any particular case". The word "undue hardship" has to be given its literal meaning and should be understood on its plain language. The "undue hardship" is relatable to the persons appointed to all India service. It is hardship in relation to regulating the conditions of service of persons appointed to All India service. The hardship, therefore, should essentially have reference to the cadre of service, interest of the service and least individual interest. The State Government in its proposal had not made out any case of hardship either to the service or even to the individual respondents. While taking decision in exercise of its powers conferred under Rule (3) of Rule 1960, the Competent Authority is required to strike a balance between public interest/service interest and individual interest. To a private interest, interest of the service would be paramount while to the service interest, public interest would be paramount. The Government may be able to take recourse to power of relaxation or even to issue instructions to provide for a situation which is not dealt with specifically under the Rules. Even if that was the situation, still the reasons ought to be the ones which would tilt the balance of interest in favour of the order rather than against it. The Central Government or any competent authority granting approval and/or according its

sanction for such purpose must do so for valid and proper reasons. The action of the State or its instrumentalities should be for reasons which are valid, just fair and reasonable. The fairplay and transparency in such an administrative or executive actions is the sine qua non to exercise of such power. Reference may be made to the judgment of the Apex Court in the case of M.J. Sivani and Ors. v. State of Karnataka : [1995]3SCR329 . The Central Government, in the compilation filed before the Court, made a reference to the letter dated 1st January, 1966, where the Government clarified that benefit to be conferred in relaxation of any Rule or Rules must be of a nature already provided for in the Rules and Governments are not empowered by this Rule to confer benefits which are not contemplated in Rules. It also indicated that undue hardship signifies unforeseen hardship to an extent not contemplated in the Rule framed and not covered under any ordinary hardship or inconvenience."

47. In Priya Shah (supra), A Division Bench of this Court had held

that "undue" means something which is not merited by the conduct of

the claimant, or is very much disproportionate to it. It was held that

"undue hardship" is caused when the hardship is not warranted by the

circumstances. For a hardship to be "undue", it must be shown that

the particular burden to observe or perform the requirement is out of

proportion to the nature of the requirement itself, and the benefit which

the applicant would derive from compliance with it, therefore, "undue"

adds something more than just hardship which means an excessive

hardship or a hardship greater than the circumstances warrant.

48. The Tribunal has held that the case of the applicant is not such

where an employee comes with some stories like coming to know of his

correct date of birth from his old or grown up relations or from his

family purohits. This observation of the Tribunal is incorrect because

the case of the applicant is that the mother-in-law of his elder sister

Smt.Sheela Taneja had expired in April, 1993 and on the kriya

ceremony it transpired that his elder sister was born in the year 1951

being the first child out of the wedlock of his parents who got married in

the year 1949. The applicant is the eldest male child and is also not

illiterate. Even according to him in his middle school record his the date

of birth of the year 1952 is shown. In 1972 when he applied for

Haryana Civil Services (Executive Branch) and other allied services

examination which was held in March, 1973, he would have known the

year of marriage of his parents and year of birth of his elder sister. He

had entered the civil service of the State in 1974. No plausible ground

has been disclosed by the applicant as to why he did not take any steps

from 1976 to 1993 to correct his date of birth. It is also inconceivable

that for seventeen years he did not know about his incorrect date of

birth and he realized that his date of birth is incorrect from his relative

and friends whom he met on the ceremonies of death of mother in law

of his elder sister. The Tribunal has not considered this aspect and has

gone on its own assumption that the case of the applicant is not such

where an employee comes on some stories like coming to know of his

correct date of birth from his old or grown up relations or from his

family purohits.

49. Had the applicant continued in the civil service of State of

Haryana, he could not have got his date of birth altered or changed in

1993 which was entered in 1973. In the State of Haryana the rule

governing the change of date of birth was rule 2.5 of the Punjab Civil

Services Rules, 1994 which laid down that the date of birth of the

Government employee, once recorded in service book, cannot be

corrected except in case of a clerical error without previous order of the

Government. The Rule further provided that the date of

birth/declaration of age made at the time of entry into service shall be

deemed to be conclusive as against the Government servant, unless he

applies for correction of his age within two year from the date of his

entry into government service.

50. The relevant rule contained in Para 1 of the Punjab Financial

Rules reads as follows: (Referred to in Rule 2.5 and Note 3 there under)

1. In regard to the date of birth a declaration of age made at the time of, or for the purpose of entry into government service shall, as against the government employee in question, be deemed to be conclusive. The employee already in the service of the Government of Punjab on the date of coming into force of the Punjab Civil Services (First Amendment) Rules, Volume I, Part I, 1994, may apply for the change of date of birth within a period of two years from the coming into force of these Rules on the basis of

confirmatory documentary evidence such as matriculation certificate or municipal birth certificate, etc. No request for the change of date of birth shall be entertained after the expiry of the said period of two years. The Government, however, reserves the right to make a correction in the recorded age of a government employee at any time against the interest of the government employee when it is satisfied that the age recorded in his service book or in the history of service of a gazetted government employee is incorrect and has been incorrectly recorded with the object that the government employee may derive some unfair advantage there from."

51. This rule was later on amended on 20.12.2000 and under the

amended rule it was provided that if an application is made beyond two

years, it must be considered on the recommendation of the

Administrative Department and the Chief Secretary only in consultation

with the Finance Department. It was entirely left to the discretion of the

Government whether to entertain any such application. The principal

provision, which required that the employee must apply within two

years, remained unaltered. The rule amended on 20.12.2000 reads as

follows:

"1. These rules may be called the Punjab Financial Volume I (Haryana First Amendment) Rules, 2000.

2. In the Punjab Financial Rules, Volume I, in Annexure A referred to in Rule 7.3 and Note 3 there under,

(i) For Para 1, the following paragraph shall be substituted, namely:

1. In regard to the date of birth a declaration of age made at the time of, or for the purpose of entry into government service, shall as against the government employee in question, be deemed to be conclusive unless he applied for correction of his age as recorded within two years from the date of his entry into government service. Wherever, it is proposed to consider the application of the employee for correction of his age within a period of two years

from the date of his entry into government service, the same would be considered by the Government in consultation with the Chief Secretary to the Government of Haryana. In cases where such application has been made beyond the stipulated period and is proposed to be accepted, the same shall be considered on recommendations of the Administrative Department and the Chief Secretary to the Government of Haryana, in consultation with the Finance Department. The Government however, reserves the right to make a correction in the recorded age of the government employee at any time against the interest of that government employee when it is satisfied that the age recorded in his service book or in the history of services of a government employee is incorrect and has been incorrectly recorded with the object that the government employee may derive some unfair advantage there from."

52. Subsequently, by the Notification dated 13-8-2001 this rule was

again amended. Amended rule contemplated that unless the

application is made within two years, no change in the date of birth

will be entertained. This new Rule 1, as amended on 13-8-2001 reads

as follows:

"1. These rules may be called the Punjab Financial Volume I (Haryana First Amendment) Rules, 2001.

2. In the Punjab Financial Rules, Volume I, in Annexure A referred to in Rule 7.3 and Note 3 there under:

(i) for Para 1, the following paragraph shall be substituted, namely:

1. In regard to the date of birth, a declaration of age made at the time of, or for the purpose of entry into government service, shall as against the government employee in question, be deemed to be conclusive unless he applied for correction of his age as recorded within two years from the date of his entry into government service. No application submitted beyond the stipulated period of two years for change in date of birth will be entertained. Wherever, the application for correction of his age is submitted by the

employee within a period of two years from the date of his entry into government service, the same would be considered by the Government in consultation with the Chief Secretary to the Government of Haryana. The Government, however, reserves the right to make a correction in the recorded age of the government employee at any time against the interest of that government employee when it is satisfied that the age recorded in his service book or in the history of services of a government employee is incorrect and has been incorrectly recorded with the object that the government employee may derive some unfair advantage there from."

53. Though in 1974 when the applicant entered the State service

these rules were not applicable even then he should have sought

alteration in his date of birth within a reasonable time. If the

subsequent rules contemplated two years period, then after entering the

State service in 1974 he should have sought change or alteration in his

date of birth within reasonable period which could not be seventeen

years as he first sought change of date of birth in 1993 on the ground

that the mother-in-law of his elder sister Smt.Sheela Taneja had expired

in April, 1993 and on the kriya ceremony it transpired that his elder

sister was born in the year 1951 being the first child out of the wedlock

of his parents who got married in the year 1949 and therefore his date

of birth could not be 1948. His representation was rejected even in

1997 after 1993, however, surprisingly this plea of its own rules for

correction of date of birth within two years of entering the service was

not taken by the respondent no.2. While recommending the change of

date of birth pursuant to representation in 2007, again the State

Government of Haryana has ignored its own rule and had recommended

the alteration to the Respondent no.1.

54. Thus if the applicant had continued in services of the State

Government, he could not successfully claim change of his date of birth

which was recorded in his service record in 1974. If that be so, can he

seek change of date of birth with the respondent no.1 on the grounds as

has been canvassed on behalf of the applicant. The plea of the applicant

that after coming to know the alleged discrepancy he has obtained

various certificates from various authorities which makes it apparent

that there is error in his date of birth as he could not have been born

before the marriage of his parents. It has been held by the Supreme

Court that any subsequent change in the source of information

regarding date of birth does not make it incumbent for the Government

of India to make consequential changes in the service record. In

G.M.Bharat Coking Coal Ltd. (supra) relied on by the Union of India

opposing change of date of birth, the employee had subsequently

obtained two certificates and had claimed alteration in date of birth.

The Supreme Court had held that the core question is whether the

certificates obtained subsequently obtained by the employee should be

accepted and date of birth entered therein be taken as conclusive. It

was held that the High Court in writ jurisdiction is not an appropriate

forum for undertaking such an enquiry into the disputed question of

fact.

55. The applicant has not produced his own certificate regarding date

of birth on the ground that the record is not traceable. The applicant

has also not produced the record of the primary school where he got

admission before entering the middle school. In the record of the Middle

school, the date of birth must have been recorded on the basis of the

record of the primary school. It is not the case of the applicant that he

joined the middle school without undergoing education in the primary

school. At the time of admission in the primary school, the school

authorities must have demanded the proof of date of birth, which could

either be the date of birth certificate or the hospital record or an

affidavit of any of the parent. The applicant is silent as to what was his

date of birth in the primary school and on what basis the date of birth

in the primary school was entered. Though the applicant has produced

the certificate of the middle school and subsequent change of date of

birth carried out by the Punjab University at his instance. In our

opinion this shall not constitute clinching and irrefutable evidence

about the date of birth of the applicant and in the circumstances the

Tribunal ought not to have gone into the disputed questions of fact. The

plea of the applicant of his date of birth of 1952 is based on the

certificate of his elder sister and younger brother and the deposition in

the form of affidavit filed by his parents about the year of their

marriage. The certificate of the elder sisters of the applicant though

does not have any column whether the child is eldest or youngest, yet

the certificate which is in Urdu, the child being eldest (`Awaal‟) is

written in Hindi. The copy of this certificate was also obtained by the

applicant in 1993 and the date of birth of elder sister is shown as 21st

July, 1951. The applicant has also produced middle standard

examination certificate of his sister where her date of birth is shown as

3rd March, 1951. The certificates issued in respect of his younger

brother also has different name of his brother. The certificate of the

younger brother reflecting his nationality as Indian which is written in

Hindi also has another endorsement as `No.3‟ which is construed as

third child by the applicant. Bare perusal of said certificate reflects that

the word `Indian‟ in Hindi and the word `no.3‟ are in different

handwritings. These observations will negate the inferences of the

tribunal that the applicant has produced clinching and irrefutable

evidence in support of his contention that his correct date of birth is 6th

May, 1952. This evidence cannot be termed to be irrefutable and

unimpeachable to make the case of the applicant as rarest of rare case.

The plea of the learned counsel for the applicant that the date of birth of

1952 of the applicant is not denied by the Union of India is also

contrary to the record. It has been specifically averred in the petition

filed by Union of India that the evidence produced by the applicant

cannot be accepted as clinching evidence and does not deserve any

consideration. The presumption under section 90 of the Evidence Act of

the documents which are more than 30 years old is also rebuttable and

not conclusive. In view of the writings on the certificate in different

handwritings, merely because the certificates are issued by the

authorities, it cannot be held that they stood proved in view of

categorical assertion of Union of India that they cannot be accepted and

do not deserve any consideration. In any case, as held by Supreme

Court, the High Court and Tribunal are not appropriate forums for

undertaking enquiry into the disputed questions of fact.

56. In 1993 when the applicant first applied or represented for the

change of his date of birth, the burden was on him to show that he had

not taken advantage of recorded date of birth of 1948. The

representations of the applicant in 1993 and 1997 were rejected on the

ground that he had taken advantage of his recorded date of birth of

1948 for appearing in Haryana Civil Services (Executive Branch) and

other allied services examination which was held in March, 1973. After

rejection of his representation in 1993, another representation that he

had not taken advantage was made in 2007 which has been justified by

the tribunal on the ground that the applicant is not in the kind of

service that he would have naturally known in the course of his duties

the rule position and, therefore, the third representation made after 10

years of the second representation was held to be justified. This

observation of the Tribunal is based on its own assumption. The

applicant was in the state civil Services of the state of Haryana. He

could have known the rule position. He had applied for change of date

of birth in the record of Punjab University which was done in 1997. The

third representation was made by the applicant 10 years thereafter and

no satisfactory explanation has been given. After 1993 the applicant

was functioning as an Indian administrative service officer. In the

circumstances it could not be held that he was in the kind of service

that he would have naturally known the rule position. Another

noticeable factor is that though the applicant has produced the rule

pertaining to post of Assistant Registrar Cooperative Society in 1974,

however, he has not produced the rules applicable to Haryana Civil

Services. In our opinion this is not justifiable and the long delay has not

been satisfactorily explained and the case of the applicant cannot be

construed to be rarest of rare cases.

57. In the circumstances it has not been established by clinching and

irrefutable evidence that the date of birth of the applicant is 6th May,

1952 and a firm finding as has been recorded by the Tribunal cannot be

recorded in the facts and circumstances. Unless a clear case on the

basis of material which could be held to be conclusive in nature could

be made out within a reasonable time as contemplated under the rules,

the direction or declaration as has been made by the Tribunal could be

made in the facts and circumstances as in the facts and circumstances

and on the basis of the material produced by the applicant his claim

can be held to be only plausible and the order of the tribunal is liable to

be set aside.

58. This is no more res-integra that for invoking Rule 3 of All India

Services (Conditions of service-Residuary Matters) Rule, 1960

requirement is that there should be an appointment to the service in

accordance with the rules, and by operation of the rule, undue hardship

has been caused, that too in an individual case in which case the

Central Government on satisfaction of the relevant conditions is

empowered to relieve such undue hardship by exercising the power to

relax the condition. The condition of the recruitment cannot be relaxed

but the condition of service may be relaxed while exercising power

under Rule 3. The `hardship‟ is essentially pertaining to the cadre of

service, interest of service, however, least to individual interest.

Government is not empowered by the rule to confer benefits which are

not contemplated in rules. This also cannot be disputed that in the

context of `Undue hardship‟ undue means something which is not

merited by the conduct of the claimant, or is very much a

disproportionate to it. In the circumstances the three factors as alleged

on behalf of applicant, retirement before the age of superannuation,

deprivation of salary, allowances and qualifying service before which the

applicant would be retired and the effect on his pension as the last

drawn salary is the determinant effect which would be lifelong, would

not constitute `undue hardship‟ as contemplated under the said rule.

Rule 16 of the rules of 1985 makes it clear that the said Rule is made to

limit the scope of correction of date of birth and service record and the

intent of the rule is to exclude all other circumstances for the said

purpose. If under the rules applicable to the service of the applicant in

State, he would not have been entitled for alteration of his date of birth

in the State, the relief cannot be granted to him under Rule 3 of All

India Services (Conditions of Service-Residuary Matters) Rule, 1960 nor

the scope of Rule 16 A could be enlarged. In the circumstances the

directions as given by the tribunal cannot be sustained in the facts and

circumstances of the case.

59. For the foregoing reasons the writ petition being WP(C) 11685 of

2009 filed by Union of India is allowed and the order of the Tribunal

dated 4th August, 2009 holding that the date of birth of the applicant is

6th May, 1952 and directing Union of India to consider the case of the

applicant under Rule 3 of All India Services (Conditions of Service-

Residuary Matters) Rule, 1960 is set aside and the writ petition of the

applicant being WP(C) 11694 of 2009 is dismissed. Considering the

facts and circumstances, the parties are left to bear their own costs.

ANIL KUMAR, J.

February      23, 2011                         VEENA BIRBAL, J.
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