Delhi High Court
Union Of India & Another vs Y.P.Madan on 24 January, 2011
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.6821/2010
% Date of Decision: 24.01.2011
Union of India & Another .... Petitioners
Through Mr. Rajeev Sharma, Advocate
Versus
Y.P. Madan .... Respondent
Through Mr. Padma Kumar S., Advocate
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
*
1. The petitioners UOI & Anr. has challenged the order dated 1st
February, 2010 passed by the Central Administrative Tribunal,
Principal Bench in OA 2259/2009 titled as „Sh. Y.P. Madan Vs. Union of
India & Another‟ directing the petitioners to take steps to verify the
certificate issued by NDMC about the date of birth of the respondent
and in case the petitioners are satisfied, to make necessary changes in
the date of birth of the applicant from 26th May, 1950 to 31st August,
1950 and order dated 31st August, 2010 passed in CP 500/2010
directing the petitioner to deem the respondent‟s retirement as per the
verified date of birth of the respondent as 31st August, 1950 and to
grant arrears of pay and allowances accordingly within a period of four
weeks from 31st August, 2010.
2. Brief facts to comprehend the controversies between the parties
are that the respondent was appointed as a Work Charged employee in
the office of the Station Engineer, Central Stores, AIR, Akashwani
Bhawan from 22nd January, 1981. The appointment of the respondent
was temporary but later on was got permanent with the work. Since the
respondent continued to work for more than 4½ years, the petitioners
decided to convert the work charged establishment to regular basis and
the respondent was appointed on regular basis by order dated 16th
October, 1985.
3. At the time of joining the services with the petitioners on 9th
January, 1981, he had submitted a certificate issued by Central Board
of Secondary Education showing his date of birth as 26th May, 1950
which was also entered in his service book.
4. On 24th February, 1987, the respondent submitted an application
for correction of his date of birth from 26th May, 1950 to 31st August,
1950 on the basis of a birth certificate issued by NDMC. The
petitioners, however, rejected the request of the respondent for the
change of date of birth on 8th April, 1987.
5. From 1987 till 2009, for 22 years, the respondent did not seek
change of his date of birth from 26th May, 1950 to 31st August, 1950.
However, in 2009, the respondent contended that ever since he joined
the Govt. service, the increment used to be granted with respect to the
month of joining and consequently he used to get his increment for the
post of Clerk Grade-II in the month of January, till the year 1986.
Thereafter, he started getting up his increment in February, due to
stepping up of pay and again from January, 2005 when he got 2nd ACP.
According to the respondent, the 6th Central Pay Commission‟s
Recommendations were brought out as Revised Pay Rules 2008, under
which the recommendations were accepted retrospectively w.e.f. 1st
January, 2006 and increments were to be granted on the 1st July of the
year and thus, the respondent‟s increment had been postponed from
January to July of every English calendar month.
6. Since the respondent‟s date of birth recorded in the service record
was 26th May, 1950 and the increments were to be granted in July, it
seriously affected his pensionery benefit and the family pension.
Consequently, the respondent made representation for alteration of his
date of birth on 21st May, 2009. The request of the respondent, was,
however, declined by order dated 6th July, 2009 on the ground that
under FR-56 and Note-6 in the said FR, a request for change of date of
birth is to be made by the Govt. servant within five years of the entry
into Govt. service. As the respondent had not made the request for
change of date of birth in accordance with FR-56 within five years, his
request for change of birth date could not be considered in 2009.
7. Aggrieved by the order dated 6th July, 2009, the respondent filed
an original application being OA No. 2259/2009 titled as „Shri Y.P.
Madan, Upper Division Clerk Vs. UOI & Another‟, which was allowed by
the Tribunal by order dated 1st February, 2010. While allowing the
application of the respondent, the Tribunal relied on CIDCO Vs.
Vasudha Gorkhnath Mandevlekar, (2009) 7 SCC 283 and directed the
petitioners to take steps to verify the birth certificate issued by NDMC
stipulating the date of birth of the respondent as 31st August, 1950 and
to make necessary change in the date of birth of the respondent as per
public record within two months of receipt of the copy of the judgment
dated 1st February, 2010.
8. Pursuant to the order of the Tribunal dated 1st February, 2010,
the petitioners passed an order dated 26th May, 2010, whereby the
request of the respondent for change of date of birth after considering
the birth certificate issued by NDMC had not been acceded and the
request was declined. The said certificate was issued by NDMC in 1978,
whereas the CBSE certificate had disclosed his date of birth as 26th
May, 1950 on the basis of which the date of birth was entered in the
service record of the respondent. The respondent, thereafter filed a
contempt petition. The Tribunal in the contempt petition filed by the
respondent, directed the petitioners to deem the respondent‟s
retirement as per the date of birth in the NDMC Certificate as 31st
August, 1950 and also directed to disburse the pay and allowance and
pensionery benefits as if the respondent would retired in 31st August,
2010. The Tribunal held in the contempt petition that by order dated
26th May, 2010, passed by the petitioners, pursuant to the order of the
Tribunal dated 1st February, 2010, the petitioners could only have
verified the NDMC Certificate and could not have passed the fresh order
dated 26th May, 2010 declining the change of date of birth on the
ground of delay as in case if the petitioners were aggrieved by the order
of the Tribunal dated 1st February, 2010 the only recourse left to the
petitioners was to challenge the said order.
9. Aggrieved by the order dated 1st February, 2010 passed by the
Tribunal in OA No. 2259/2009 and order dated 31st August, 2010
passed in CP 500/2010, the petitioners have preferred the present writ
petition contending, inter alia, that the issue of change of date of birth
of the respondent in 1987 was sought about six years after the
respondent was inducted in service 1981. In any case since the claim of
the respondent for alteration of date of birth was declined in 1987, he
could not re-agitate the issue of change of birth after a gap of 22 years
on the same ground in 2009. According to the petitioners, the Tribunal
ought to have rejected the original application of the respondent as it
was clearly barred by limitation and principles of delay and latches. It
was asserted that in the circumstances, the orders dated 1st October,
2010 and an order passed in the contempt petition dated 31st August,
2010 suffers from jurisdictional errors. The petitioners also contended
that in the contempt petition, the Tribunal had to take into
consideration the order dated 1st February, 2010 as passed by the
Tribunal pursuant to which, order dated 26th May, 2010 was passed by
the petitioner declining the change of date of birth on the ground of
delay after considering the birth certificate issued by the NDMC. In
exercise of its contempt jurisdiction, the order dated 26th May, 2010
passed by the petitioners could not be set aside by the Tribunal nor
could the Tribunal direct the petitioner to change the date of birth of
the respondent from 26th May, 1950 to 31st August, 1950. The
petitioners also pleaded that there is no connection with the date of
increment with the change of date of birth. The learned counsel for the
petitioners also relied on a judgment of the Supreme Court titled as
Punjab & Haryana High Court at Chandigarh Vs. Megh Raj Garg and
Anr. 2010(6) SCALE 61 in support of his pleas and contentions.
10. The writ petition is contested by the respondent contending, inter
alia, that although, the respondent was regularized retrospectively from
22nd January, 1981, however, the order of regularization was passed on
16th October, 1985 and he had submitted his request for alteration of
date of birth on 24th February, 1987 within five years as contemplated
under FR-56 based on the birth certificate issued by the NDMC/MCD.
According to the respondent, the date of birth as recorded in the birth
certificate could not be ignored on the basis of a school certificate and
reliance was placed on CIDCO (supra).
11. The counsel for the respondent has also contended that since the
application for change of date of birth in 1987 was made within 1½
years of regularization, the same could not be declined. The learned
counsel has also relied on Gendalal Vs. UOI & Ors. (2007) 15 SCC 553
where the employee had made representation within six years of his
joining the service. It was held that merely because he sought relief
departmentally instead of approaching the Tribunal, it could not be said
that he had not acted diligently.
12. The learned counsel for the respondent has also contended that
an application for condonation of delay was also filed on behalf of the
respondent and relying on AIR 1987 SC 1353, Collector, Land
Acquisition, Anant Nag & Anr. Vs. Mst. Katiji & Ors., it was averred that
when substantial justice and technical considerations are pitted against
each other, cause of substantial justice deserves to be preferred, for the
other side cannot claim to have vested rights in injustice being done
because of a non-deliberate delay. In the circumstances, the plea of the
respondent is that the request for change of date of birth was rejected in
1987 but as it did not materially affected him he did not press for it,
however, on account of his retirement and the implementation of the
recommendations of the 6th Central Pay Commission, as it would have
made difference to his pension, he had sought the change of date of
birth and in case it is not done, grave injustice will be caused to him.
According to the respondent, the delay is not deliberate and ought to be
condoned in the facts and circumstances.
13. This Court has heard the learned counsel for the parties in detail
and has also perused the pleading and documents and precedents
relied on by the parties. In Gendalal (Supra), the point for
consideration before the Supreme Court was whether the employee had
approached the administrative tribunal at the fag end of his career or
not. The first representation was made by the employee within six
years of his joining his service in 1964. Two years later, he again made
a representation and sent the reminders. Instead of rejecting the
representation, 21 years after the receipt of representation, the
authorities demanded more documents which were supplied by the
employee and thereafter, in 2001, by a cryptic order, the representation
for change of date of birth was rejected on the ground that request for
change of date of birth was made 32 years after the appointment of
employee and 6 months prior to his retirement. Apparently, the case of
the respondent is distinguishable as his representation was declined in
1987 and thereafter, he did not take any steps to seek a change of date
of birth for 22 years till 2009 only after realizing the benefits he would
become entitled to under the 6th Central Pay Commission with the
change of date of birth. In the case of Gendalal (supra), the
representations made by the employee within six years of joining the
service, however they were not decided within reasonable time and it
took almost 21 years to reject it on the ground of delay. In
contradistinction in the case of the respondent his representation was
rejected in 1987. Thereafter, on the same ground he made
representation 22 years after in 2009. Merely on the basis of his
rejected request for alteration of change of date birth, the limitation
provided under rules would not increase nor the respondent is entitled
to claim that his subsequent request for alteration in the change of date
of birth would be within time. On the basis of the ratio of the said
judgment, the respondent cannot contend that there is no delay on his
part to approach the authorities seeking the change of date of birth
within the reasonable time, as the rejection of the representation in
1987 does not in any way extend the period of limitation till the second
representation was made after 22 years.
14. The learned counsel for the respondent has also relied on CIDCO
(supra) where the Supreme Court had held that entry in the municipal
birth and death register shall prevail over entry in the school register,
particularly in the absence of any proof that the same was recorded at
the instance of the employee‟s guardian. In the facts and circumstances
of the case relied on by the respondent, the Supreme Court had not
discarded the municipal record in birth and death register on the
ground that the employee‟s birth took place prior to creation of
municipality, as the certificate was issued on the basis of records
maintained by predecessor body, namely Gram Panchayat. The
Supreme Court, in the said case, had also rejected the plea that the
employee though had been working in the personnel department could
have manipulated or made interpolation in the certificate issued by the
Municipal Council, which was available with the corporation as far back
as in the year 1976. In the case of the respondent, the petitioners has
rejected the change of date of birth on the ground that he has
approached almost after 22 years without giving any justifiable reason
after it was rejected in 1987. In CIDCO (supra) though the Supreme
Court had relied on the municipal record of births and death, however,
the question of delay and latches was not considered and consequently,
on the basis of same, the respondent cannot claim that he is entitled for
alteration of his date of birth. As far as the Municipal Certificate is
concerned, it discloses the date of birth as 31st August, 1950 of a male
child of Mr. Pokhar Dass. This is not disclosed by the respondent as to
how many children his parents had and that the said certificate would
belong only him and not to any other child.
15. The Tribunal has held that although, the respondent had
approached the petitioners in 1987, however, there is no discussion in
the order dated 8th April, 1987, about the validity of NDMC certificate
that had been submitted. In the circumstances, it was opined by the
Tribunal that in case, the NDMC certificate is found to be genuine, the
petitioners has to hold that a public record is to be accepted in
preference to the school certificate. The Tribunal could not sit in appeal
in 2009 over the order of the petitioners passed in 1987. As already
discussed herein before the facts and circumstances of CIDCO (supra),
relied on by the Tribunal and the respondent are completely
distinguishable. In any case, if the order dated 8th April, 1987 rejecting
the claim of the respondent for change of date of birth on account of
delay under FR-56 was not correct, the respondent ought to have
challenged the same. This is not disputed that the respondent was
employed in 1981 though, he was regularized in 1985. If the period for
seeking change of date of birth is to be computed from 1981, the
request of the respondent in 1987 was beyond time and if it is to be
computed from 1985, then it is within time. However, as already held,
if the respondent was aggrieved by the said order, he ought to have
challenged the order dated 8th April, 1987. No exception has been
carved out under FR-56 as has been inferred by the Tribunal that in
case the NDMC Certificate is found to be genuine, then even contrary to
the time prescribed under FR-56, alteration of date of birth should be
carried out. It was rather held by the Supreme Court in Punjab and
Haryana High Court, Chandigarh (supra) relying on its various previous
judgments that it is competent for the Govt. to fix a time limit, in the
service rules, after which no application for correction of date of birth of
a Govt. servant can be entertained. A Govt. 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 alteration of his date of
birth even if he has good evidence to establish that the recorded date of
birth is clearly erroneous, has to be carried out.
16. The law of limitation may operate harshly but it has to be applied
with all its rigor 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. No doubt, that the respondent had approached the petitioners
for change of date of birth in 1987, however it was declined. Since it
was declined, the respondent ought to have approached the appropriate
authority impugning the said order within the time prescribed under
FR-56. By no stretch, the application for change of date of birth filed in
2009 can be held to be in consonance with the relevant Rule even if the
first application for the change of date of birth was filed in 1987. In the
circumstances, order of the Tribunal in OA 2259/2009 titled Sh. YP
Madan Vs. Union of India directing the petitioners to take steps to verify
the NDMC certificate relied on by the respondent cannot be sustained
as it is contrary to the law laid down by the Supreme Court and FR-56,
which contemplates that the request for correction of date of birth has
to be sought within five years of entry of the date of birth in the record
of the authorities.
17. Pursuant to the order dated 1st February, 2010, directing the
petitioners to consider the certificate issued by the NDMC, the
petitioners passed an order dated 26/28th May, 2010 and it was held
that in terms of OMF-9/1/61-Estt.(A) dated 17th November, 1962 the
alteration of date of birth of the Govt. servant is not to be entertained
after preparation of their service book and in any event not later than
the completion of probation period whichever is earlier. Since, the
respondent had passed his school examination in 1970 and joined the
service in 1981, therefore, despite having ample time as he did not seek
alteration in his date of birth within time, the same should not be
allowed. If the order passed by the petitioners was not in accordance
with law, and the certificate of NDMC had not been properly considered,
the remedy available with the respondent was to challenge the said
order by filing the appropriate petition and not by filing a Contempt
petition. In the contempt petition, being CP 500/2010, the Tribunal
has rather held that the import of order dated 1st February, 2010 was
directing the petitioners to change the date of birth. Such an
observation of the Tribunal is not borne out, from reading of the order
dated 1st February, 2010 as what was directed was to consider the
NDMC Certificate. By order dated 26/28th May, 2010, the certificate
was considered and it was held that since the respondent had joined
the Govt. service in 1981 even on the basis of NDMC certificate the
alteration in his date of birth cannot be permitted. In the
circumstances, the Tribunal has committed a jurisdictional error in
directing the petitioners to change the date of birth of the respondent
from 26th May, 1950 to 31st August, 1950 and directing the petitioners
to pay all the allowances and pension in terms of the changed date of
birth.
18. It is relevant to refer at this juncture the judgment of the Hon'ble
Apex Court rendered in Prithavi Nath Ram v. State of Jharkhand and
Ors., 2004 (7) SCC 261 wherein the Apex Court has held that while
dealing with the application for contempt, the Court is really concerned
with the question whether the earlier decision which has received its
finality had been complied with or not. If any party is aggrieved by the
order which in its opinion is wrong or against rules or its
implementation is neither practicable nor feasible, it should always
either approach the Court that passed the order or invoke jurisdiction
of the appellate court. Rightness or wrongness of the order cannot be
urged in contempt proceedings. Right or wrong, the order has to be
obeyed. Flouting an order of the Court would render the party liable for
contempt. The Court seized of the Contempt Application cannot traverse
beyond the order. In the circumstances the Tribunal in the Contempt
petition could not direct the petitioners to alter the date of birth of the
respondent and direct the petitioners to pay all his dues on the basis of
his altered date of birth. The Court, in exercise of contempt jurisdiction,
has power to punish the party for intentionally violating its
order/judgment, but has no power to give additional directions or to
modify original order/judgment. The Supreme Court in Prithivi Nath
(supra) had specifically ruled that the Court, while exercising contempt
jurisdiction, has neither power to modify the original order/judgment
nor to give additional directions. The Tribunal, in exercise of its
contempt jurisdiction, in the facts and circumstances, could not have
passed such an order and the order dated 31st August, 2010 in CP
500/2010 apparently is not sustainable and is liable to be set aside.
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 162 with 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..."
21. For the foregoing reasons, the Tribunal ought not to have
entertained the claim of the respondent which was belated as per the
period provided in the Rules and should not have directed the
petitioners to alter the date of birth of the respondent from 26th May,
1950 to 31st August, 1950 while dealing with the Contempt application
of the respondent. The application of the respondent under section 19
of the Administrative Tribunal's Act also could not be decided in favor of
respondent which was filed 2009 though the date of birth which was
sought to be altered was entered and recorded in his service book in
1981. The orders of the Tribunal apparently are illegal and are not
sustainable in the facts and circumstances and are liable to be set
aside.
22. For the foregoing reasons, the writ petition is allowed. The
impugned order dated 1st February, 2010 in OA No. 2259/2009
directing the petitioners to take steps to verify the certificate issued by
NDMC and to carryout necessary change in date of birth of the
respondent in public record and order dated 31st August, 2010 in CP
No. 500/2010 directing the respondent to deem the respondent‟s
retirement as per the verified date of birth as 31st August, 1950 in place
of 26th May, 1950 are set aside and the original application and the
contempt application of the respondent are dismissed. Considering the
facts and circumstances of the case, the parties, however, are left to
bear their own costs.
ANIL KUMAR, J.
JANUARY 24, 2011 VEENA BIRBAL, J.
„rs‟
