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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: KANTILAL HEMATRAM PANDYA

DATE OF JUDGMENT14/02/1995

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) MUKHERJEE M.K. (J)

CITATION:  1995 AIR 1349            1995 SCC  (3)  17  JT 1995 (2)   365        1995 SCALE  (1)708

ACT:

HEADNOTE:

JUDGMENT: 1.   Leave granted. 2.       The respondent entered Railway service on  1.7.1955 giving  his date of birth as 6.9.1930 at the time  of  entry into  the  service.  That date of birth was entered  in  his service record.  On the basis of the said date of birth, the Railway Administration issued order on 5.2.1988/8.3.1988 for the  retirement  of the respondent  w.e.f.  30th  September, 1988,  on  attaining the age of 58  years.   The  respondent protested.  According to him, his correct date of birth  was 4.9.1934  and not 6.9.1930 and he was liable to  be  retired from service only on 30th September 1992.  The order of  the Railway   Administration   directing   retirement   of   the respondent  with  effect  from  30th  September,  1988   was challenged  by him through OA No. 283/87 before the  Central Administrative  Tribunal,  Ahemadabad.  By its  order  dated 26.8.1988  the Tribunal partly allowed the  application  di- recting as under:               "The decision dated 5th February, 1988 of  the               Competent   authority  communicated   to   the               petitioner  under  letter  dated  8.3.1988  is               hereby quashed and set aside.  It is  directed               that   either  the  general  Manager  or   his               delegate  C.P.O.  of  the  respondent  Railway               Administration shall inform the petitioner  at               the  earliest about the documents with a  copy               thereof,  on which reliance is sought  by  the               Railway  Administration  for  arriving  at   a               correct decision for his D.O.B. and permit the               petitioner  to produce relevant  documents  in               support  of  his  claim and  decide  the  same               within 6 months from the date of this order by               a speaking order after giving the petitioner a               personal  hearing  in  the light  of  the  ob-               servations made herein above and in accordance               with law.  I have no doubt that the competent

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             authority will decide the               matter     afresh, without being influenced by               the  orders  passed earlier.   It  is  further               ordered  that in case the  petitioner’s  claim               for correction  of birth date is established               367 the  competent authority will give effect to such  corrected birth date by giving all consequential benefits on the basis thereof 3.   In obedience to the aforesaid directions, the C.P.O. of Railway Administration held an enquiry into the claim of the respondent  regarding  his  date  of  birth.   Parties  were directed to produce their evidence and were also heard.  The Railway  Administration in the course of the enquiry by  the C.P.O.  relied upon various documents including  the  option forms  dated 16th September, 1960 and 20th  February,  1980, wherein  the  respondent  had given his  date  of  birth  as 6.9.1930 as well as the Provident Fund withdrawal form filed on 20.2.1980 in which again the date of birth had been shown by the respondent as 6.9.1930. It was also noticed that  the respondent  had not availed of the opportunity given by  the Railway  Board  in 1972 asking all  the  literate  employees serving with the Railways to submit their representations if any,  in case, they wanted any correction or  alteration  in their recorded date of birth, latest upto 31.7.1973. It  was found that the respondent had made a representation for  the first  time on 25.12.1985 and then on 12.3.1987  seeking  an alteration  of  his date of birth and claiming his  date  of birth  to  be 4.9.1934. The respondent  produced  copies  of school  leaving certificates, issued in 1988, in support  of his  claim that his date of birth was 4.9.1934.  The  C.P.O. after analysing the evidence and the material on the  record and hearing the parties rejected the claim of the respondent for  the  alteration of his date of birth from  6.9.1930  to 4.9.1934  vide  order  dated  24.1.1989.  Aggrieved  by  the aforesaid  decision,  the  respondent once  again  moved  an application before the Tribunal challenging the order  dated 24.1.1989.By its impugned order dated 30th September,  1993, the  Tribunal allowed the application and quashed the  order dated 24.1.1989. and directed the Railway Administration  to alter  the, date of birth of the respondent in  his  service records from 6.9.1930 to 4.9.1934 and since, the  respondent had already retired from service on 30.9.1988, the  Tribunal directed  that  the  respondent  be treated  as  if  he  had continued  in service from 1.10.1988 till 30.9.1992  and  on that basis be given all the consequential benefits including the  pay  and allowances.  The Tribunal took the  view  that even  though vide its earlier order of 26.8.1988 the  C.P.O. had  been directed to pass a speaking order after giving  an opportunity  to the respondent to produce his  evidence  and considering  the same, the C.P.0, had not complied with  the order in its correct perspective.  The Tribunal found  fault with the opinion of the C.P.O. that since the respondent had not availed of the final opportunity, provided by the  Board asking   all   the  literate  employees  to   submit   their representations  if  any, for correction of  their  recorded date  of  birth latest by 31.7.1993, therefore  his  belated claim for correction of his date of birth suffered from  the vice of laches.  The Tribunal relied upon a Full Bench judg- ment  of  the  Tribunal in T.A.  No.  1104/86  and  1089/86, wherein it had been held that the Railway Board’s letter No. E(NG) ii70-BR/1 dated 4.8.1972, prescribing 31.7.1973 as the last  date  for  making representation,  for  effecting  the change  of date of birth, did not have the force of law  and that an application by a railway employee for correction  of

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his date of birth, could not be rejected on the ground  that it had not been made before the last date prescribed in  the Railway Board’s letter dated 4.8.1972. 4.   Learned counsel for the appellant 368 while assailing the impugned order of the Tribunal submitted that it had labored unnecessarily to get out of the  binding judgment of this Court in Union of India v. Harnam Singh   1 993 (2) SCC, 1621 which was fully attracted to the facts and circumstances  of the case.  Learned counsel submitted  that the  date  of birth which had been recorded in  the  service record  of the respondent was 6.9.1930 and that till  almost the  eve of his retirement, the respondent took no steps  to have  the  recorded  date  of  birth  altered,  even  though opportunity  had been granted to all literate  employees  of the  Railways to have their date of birth altered,  in  case the  same had been recorded wrongly, till 31.7.1993  and  as such, the Tribunal should have refused the alteration of the date of birth of the appellant, which had been claimed after an  inordinate  and  unexplained long  delay  of  more  than quarter of a century. 5.   In Union of India v. Harnam Singh (supra)    this Court opined that:               "A  Government  servant, after  entering  into               service  acquires  the  right  retirement,  as               fixed  by the State in exercise if 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 this  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               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 a n               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

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             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." 6.   The  Tribunal  noticed the judgment  rendered  by  this Court in Harnam Singh’s case (supra) but curiously failed to follow it observing:               "Although  the respondents neither  quoted  in               the reply nor took the opportunity of bringing               the  case  to  our notice.  We  are  bound  to               respect the ratio of the latest Supreme  Court               judgment  in  Union  of  India  and  Ors.   v.               Harnamsingh,  (1992 SC (L & S) - 375), in  the               matter  of date of birth and which over  rules               CAT  Full  bench  decision  in  Darshansingh’s               case.     That   case   which    related    to               interpretation               369               of   Note  No.  5  to  FR-56  (M)  which   was               incorporated only in 1979 provided for request               to  be  made for correction of date  of  birth               within five years from the date of entry in to               service.  The Hon’ble Supreme Court held  that               in  case  of Government servants  who  entered               service prior to 1979, it will be  appropriate               and in tune with harmonious construction to be               held that they may seek the correction of date               of  birth  after 1979, but in  any  event  not               later than 5 years after coming into force  of               the amendment in 1979.  The Supreme Court also               observed   that   Darshansingh’s   case    was               distinguished   by   the   fact   that    Shri               Darshansingh  had not been shown  the  service               book even once during his entire service.  The               Supreme  Court  also referred to  the  General               rule that in the absence of date of birth  the               general  principle of refusing relief  on  the               ground of laches and stale claim is  generally               applied by the Courts and Tribunals               We  are bound by Supreme Court’s  decision  in               Harnamsingh’s case but in view of the  special               features of the instant case, we hold that  we               are required to consider the case on merits The  approach of the Tribunal is patently objectionable  and does  not commend to us. It attempted to circumvent the  law laid down by this Court on untenable reasons by stating that "we are required to consider the case on merits" without  in fact  so  considering.  The law laid down by this  Court  is binding  on  all courts and tribunals.  Indeed, the  law  as declared  by this Court has to be applied to the facts of  a given case and not applied mechanically but we find that  in the  present case the facts were so eloquent that  no  scope was  available  with the Tribunal to get  over  the  opinion expressed  by this Court in Harnam Singh’s case (supra)  and on  the facts as established on the record the Tribunal  had no option but to refuse relief to the respondent. 7.   From  a  perusal  of the record  we  find  that,  after joining  the service in 1955, the respondent had himself  in 1960  as  well  as in 1980 mentioned his date  of  birth  as 6.9.1930  (as  had been recorded on the first sheet  of  his service record) on various documents including the Provident

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Fund  withdrawal  form  dated  20.2.1980.  No   explanation, muchless  a satisfactory explanation, has been furnished  by the  respondent as to why he mentioned the date of birth  as late as 20.2.1980 in the Provident Fund withdrawal form,  as 6.9.1930  if he was already in possession of  such  evidence which showed his date of birth as 4.9.1934. 8.   On 25.12.1985, for the first time, three decades  after the respondent had entered    into    service,    did    the respondent make an application for correction of his date of birth without adducing any reliable documentary evidence  in support of its claim and without in any manner explaining as to  why  the respondent had taken no action  for  all  those thirty years.  In the enquiry held by the C.P.O., consequent upon  the  remand of the case, the  respondent  relied  upon three  school  leaving certificates procured  belatedly  and containing contradictory assertions.  In this connection, it may  be noticed that one of the school  leaving  certificate produced by the respondent shows that he was admitted to the school  on 23.4.1949 and had left the school  on  12.1.1950, without  even  completing one academic year  of  study,  The respondent,  on  the basis of the above  certificate,  would appear to have joined the school in midsession and left  the school again in midsession.  Before the C.P.O., the  respon- dent  contended that he had to withdraw from the  school  on account of the death 370 of his father but curiously the Certificate records that  he was leaving the school to study in some other school.   That apart,  the  basis on which the entry of date of  birth  was made  in  that  certificate has not  been  disclosed.   This certificate was produced before the Tribunal also.  The copy of  the other School Leaving Certificate which was  produced by  the respondent during the enquiry by the C.P.O. and  was also  produced before the Tribunal, issued by the  Principal of the V.C. Techn.  High School, a private school, reads  as follows               This   is  to  certify  that   Shri   Kantilal               Hemantram Pandya’s Date of Birth in figures  -               4.9.34 (In words) Four September Thirty  Four.               This  certificate is given as per this  School               Register  No. JR.  NA3716 dated  19.9.1988  on               charging of Rs. 1/- as per rules. 9.   A bare or cursory look at the above document shows that the  certificate  was issued on 19.9.1988, just a  few  days prior to the date of superannuation of the respondent on the basis  of  his recorded date of birth and appeared to  be  a document  brought  into  existence for the  benefit  of  the pending proceedings.  The C.P.O., therefore, rightly did not place  reliance  on the said certificate.  The copy  of  the certificate,  as  already noticed had been issued  in  1988. The  Tribunal,  as  a  matter  of  indulgence  directed  the respondent  on  15.2.1993 to obtain an  affidavit  from  the Headmaster  of the school disclosing the date on  which  the original  certificate  was issued as also why the  copy  was issued  in  1988,  but no such affidavit  was  produced  for reasons  best  known  to the respondent.   Inspite  of  this lacuna,  the  Tribunal  erroneously  relied  upon  the  said certificate,  the correctness and genuineness of  which  was not free from doubt to grant relief to the respondent.   The material  on  the record established that after  filing  the option  forms  declaring his date of birth as  6.9.1930,  in 1960, and after the filing of the Provident Fund  withdrawal form  on 20.2.1980, the respondent made  his  representation for correction of date of birth in 1985 and 1987 but  failed to   substantiate  his  claim  through  any   reliable   and

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trustworthy documentary evidence.  He allowed the matter  to rest  till  he  neared  the  age  of  superannuation.    The respondent  slept over his rights to get the date  of  birth altered for more than thirty years and woke up from his deep slumber  on  the eve of his retirement only.  The  law  laid down by this Court in Hamam Singh’s case (supra) was,  thus, fully applicable to the facts and circumstances of the  case of the respondent and the Tribunal failed to follow the same without  even  pointing out any distinguishing  features  on facts.   Stale claims and belated applications  for,  alter- ation  of the date of birth recorded in the service book  at the  time  of  initial entry,  made  after  unexplained  and inordinate  delay,  on  the eve of retirement,  need  to  be scrutinized  carefully and interference made  sparingly  and with  circumspection.  The approach has to be  cautious  and not  casual.  On facts, the respondent was not  entitled  to the relief which the Tribunal granted to him.  The order  of the  Tribunal is erroneous and the directions issued  by  it cannot  be sustained.  We, accordingly, set aside the  order of the Tribunal and allow this appeal.  No costs. 371