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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: C.RAMA SWAMY AND ORS.

DATE OF JUDGMENT:       09/04/1997

BENCH: J.S. VERMA, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T KIRPAL,J.      The question  which arises  for consideration  in  this appeal is whether the respondent was entitled to ask for and alteration for  his date  of birth as entered in his service record, which  entry had  been made  at the time when he had joined service.      The respondent  had taken  the All  India Joint Service Competitive examination  in the  Year 1967.  On the basis of the said  examination he was selected as a direct recruit to the Indian  Police service  (IPS)  of  1968  batch.  In  his services book  the date  of birth which was entered was 17th June, 1939.  This entry was made on the basis of his date of birth as  recorded in  the senior school leaving certificate and also in his application for appearing for civil services examination of the Year 1967 in which he was selected.      Nearly fourteen  Years after  the respondent had joined services he  submitted a representation dated 4th September, 1982 to  the Andhra  Pradesh state  Government, the cadre to which he  has been  assigned, for changing his date of birth to 15th  June, 1941.  In the  said application it was, inter alia, stated  that after  the demise  of his  mother,  while going through various papers in his house, he round from his horoscope that  his date of birth which was written in Tamil corresponded to  15th June, 1941. He also stated that he had obtained  extracts  from  the  record  of  birth  from  sub- Registrar’s office  which indicated  that his  date of birth was 15th June, 1941. Accordingly he requested that  his date of birth be altered from 17th June, 1939 to 15th June.      Vide memorandum dated 20th October, 1982 respondent was informed by  the  state  Government  that  his  request  for alteration of  his date  of birth  could not  be agreed  to. Thereafter the respondent wrote a letter dated 1st December, 1982 to  the  Director  General  and  Inspector  General  of Police. Andhra  Pradesh requesting  him  to  ask  the  state Government  to   forward  to   the  Government  of  India  a representation for  correcting his  date of  birth. To  this letter the  respondent  received  a  memorandum  dated  11th March, 1983  from the chief Secretary, Andhra Pradesh to the effect that the Government did see any reason to re-open the

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case  which   had  already   been  rejected.  Thereupon  the respondent again  vide his  letter dated  14th August,  1983 requested the state Government to forward his representation to the Government of India.      The  aforesaid   representation  was  rejected  by  the central Government Vide its order dated 23rd May, 1990.      Still in  pursuit of  his desire  to get  his dated  of birth altered  the respondent  adopted a  novel  method.  He filed  a   suit  in   the  court  of  the  District  Munsif, Sholinghur, impleading  the Director  of  school  Education, Madras; District Educational Officer, Vellore and his eldest sister Kamla  as the  defendants. In  the  suit  the  relief claimed  was  for  a  decree  of  mandatory  injunction  for directing defendants 1 and 2 to alter his date of birth from 17th June,  1939 to  15th June, 1941 in his SSLC book. It is pertinent to notice that neither the state of Andhra Pradesh nor the  Union of India were impleaded as parties. The court on 28th  October ,  1992 decreed  the suit  and granted  the mandatory injunction and ordered that the dated of birth the respondent should  be corrected  in the  SSLC book  so as to reflect the respondent’s date of birth as being that of 15th June, 1941 instead of 17th june, 1939.      Armed with  a  duly  corrected  senior  school  leaving certificate, pursuant  to the  aforesaid decree  having been passed by  the court,  the  respondent  once  again  made  a representation to  the Government  of India for altering his date of  birth to  15th June,  1941. Vide  order dated  15th November, 1983, passed in exercise of its power conferred by Rule 16A  of the All India services (DCRB) Rules , change of the date  of birth  was rejected. Not deterred by this , the respondent made  yet another  representation on 4th January, 1994 to  the Secretary,  Department of personnel, Government of India,  Ministry of  Home Affairs, inter alia, contending that the  government  had  not  considered  the  documentary evidence which  had been  produced by  him and  his date  of birth should  be altered so as to entitle him to continue in service till  30th June,  1999.  He  also  sought  to  place reliance on the cased of two officers where   the Government of India  had accepted  their representation and altered the date of birth. This representation again met with no success and, Vide  letter dated  11th April, 1994 the respondent was informed about the rejection of the representation.      Having failed  to get  relief from  the government  the respondent filed  OA No.383  of 1994  before  the  Hyderabad Bench of the Central Administrative Tribunal requiring it to direct the  alteration of  his date  of birth  to 15th June, 1941.  On  behalf  of  the  appellants  herein,  apart  form contending that  no case  had been  made out for agreeing to the change in the date of birth, reliance was placed on Rule 16A which had been amended vide notification dated 7th June, 1978 and it was submitted that the date of birth as recorded in the service book had to be accepted as final and correct.      By an  involved reasoning  the  Tribunal  came  to  the conclusion that  sub-rule (4)  and (5) of the 1971 Amendment Rules continued t apply to pre 1971 new Rule 16A in 1978 and under the  1971 Rules  no determination  with regard  to the date of  birth  of  the  respondent  had  taken  place.  The Tribunal  accordingly  directed  the  appellants  herein  to determine his  date of  birth after giving the respondent an opportunity to  place the  necessary material available with him. It  was further directed that in case it was found that the date of birth of the respondent herein had to be altered from 17th  June, 1939  then necessary  correction had  to be taken  as   the  basis  for  determination  of  the  age  of superannuation of the respondent.

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    Aggrieved by the aforesaid direction the Union of India has  filed   the  present   appeal.  It   is  contended   by Mr.N.N.Goswami, learned   senior counsel for the appellants, that not  only was the application filed before the Tribunal barred by  time but  the Tribunal  completely misrepresented the said  rules and came to a wrong conclusion that the date of birth  of the  respondent had  to be determined under the 1971 Rules.  On behalf  of the  respondent it  was submitted that the order of the Tribunal calls for no interference and that  the  1971  Rules  apply  and  as  there  had  been  no determination or  the respondent’s  date of birth under Rule 16A as  introduced in  1971, therefore, the Tribunal rightly directed such  a determination  to be  made. Learned counsel for the  respondent also sought to place reliance on certain decisions in  an effort  to show  that relief with regard in appropriate cases.  In particular,  reliance was also placed on a  decision of the High court of Himachal Pradesh in 1996 (1) SLR  402 wherein  it was  observed that the principle of estoppel does  not apply  to such cases of change in date of birth.      In  order  to  examine  the  rival  contentions  it  is necessary  to    refer  to  Rule  16A  as  inserted  by  the notification dated  4th December, 1971 and the new Rule 16A, which  substituted   the  earlier  rule,  as  inserted  vide notification dated  7th June,  1978.  These  rules  read  as follow :      1971 Rules      16A Determination  of the  dated of      birth      (1)  For   the   purpose   of   the      determination  of   the   date   of      determination of  the service  such      date  shall   be  calculated   with      reference to  the date of his birth      accepted  or   determined  to   the      central Government under this Rule.      (2)  In  relation   to   a   person      appointed after the commencement of      the All  India services (Death-cum-      retirenment   Benefits)   Amendment      Rules 1971 to:           (a)  the Indian Administrative           service under  clause  (a)  of           clause (aa) of sub rule (1) of           rule   5    of   the    Indian           Administrative         service           (Recruitment ) Rules 1945 or;           (b)  the Indian Police service           under  clause  (a)  of  clause           (aa) of sub rule (1) of Rule 4           of the  Indian Forest  service           (Recruitment) Rules 1954 or;           (c)  the Indian Forest service           under clause  (a)  for  clause           (aa) of  the sub  rule (2)  of           the  Rule   4  of  the  Indian           Forest  service  (Recruitment)           Rules 1965;      The date  of birth  as declared  by      such person  in the application for      recruitment to the service shall in      the absence  of any cogent evidence      to the  contrary be accepted by the      central Government  on the dated of      birth of such person.

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    (3)  The date  of birth in relation      to a  person to  whom sub  rule (2)      does not apply and who is appointed      to   the    service    after    the      commencement  Benefits)   Amendment      Rules 1971  shall be  determined in      the following manner, namely,           (a)  every such  member  shall           within one moth of the date on           which  he  joins  the  service           make a  declaration as  to the           date of his birth.           (b)  On    receipt     of    a           declaration made  under clause           (a)  the   central  Government           shall   after    making   such           inquiry as  it  may  deem  fit           with regard to the declaration           and  after   considering  such           evidence, if  any, as  may  be           accepted  in  support  of  the           said declaration make an order           within four  months  from  the           date on  which such member had           joined the service determining           the  date  of  birth  of  such           member.      (4)  [a]  Every   member   of   the      service holding  office immediately      before the  commencement of the All      India     services      (Death-cum-      retirement   Benefits)    Amendment      Rules  1971   shall  within   three      months from  such commencement make      a declaration  as to  the date  his      birth ;           [b]   On    receipt   of   the      declaration made  under clause  (a)      the central  Government shall after      making such  inquiry as it may deem      fit with  regard to the declaration      and    after    considering    such      evidence, if any, as may be adduced      in support  of the said declaration      make an  order within  four month’s      from the  date of  such declaration      determining the  date of  birth  of      such member.      (5)  In the case of a member of the      Service referred to in sub rule (3)      or sub  rule (4) as the case may be      who fails  to make a declaration in      respect of the date of his birth as      required  by  such  sub  rule,  the      central  Government   shall   after      taking into  account such evidence,      as may  be  available  to  it,  and      after   giving    such   member   a      reasonable  opportunity   of  being      heard make an order determining the      date of birth of such member.      (6)  Notwithstanding       anything      contained in  this rule, no date of      birth declared  by a  member of the      service  shall   be   accepted   or

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    determined,  in  relation  to  such      member except   after  giving  such      member a  reasonable opportunity of      showing cause  against the proposed      action.      (7)  Every date  of birth  accepted      or determined under this rule shall      be subject to Rule 16B be final.      1978  Rules:   Acceptance  of  date      birth      16A Acceptance of date of birth (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   his  birth  as      accepted by  the central Government      under this rule.      (2)  In  relation   to   a   person      appointed, after  the  commencement      of the  All India  service  (Death-      cum-retirement Benefits)  Amendment      Rules, 1971.           [a]  The     Indian     police           Administrative  service  under           clause (a)  or clause  (aa) of           sub rule  (a) of rule 4 of the           Indian Administrative  service           (Recruitment) Rules, 1954; or           [b]  The Indian police service           under  clause  (a)  or  clause           (aa) of sub rule (1) of rule 4           of   the Indian Forest service           (Recruitment) Rules, 1954; or           [c]  The     Indian     Forest           services under  clause (a)  of           clause (aa) of sub rule (2) of           rule 4  of the  Indian  Forest           service  (Recruitment)  Rules,           1966;      the date  of birth  as declared  by      such person  in the application for      recruitment to the service shall be      accepted by  the central Government      as  the   date  of  birth  of  such      person.      (3)  In relation  to  a  person  to      whom sub  rule (2)  does not apply,      the date  of birth  as recorded  in      the service  book or  other similar      official document maintained by the      concerned   government   shall   be      accepted by the central Government,      as  the   date  of  birth  of  such      person.      (4)  The date of birth as  accepted      by the Central Government shall not      be is  established that a bona fide      clerical mistake has been committed      in  accepting  the  date  of  birth      under sub rule (2) or (3)."      For the view which we are taking it is not necessary to decide whether  the application of the respondent before the Tribunal was  time barred  because, in  our  opinion,  on  a correct interpretation  of the  said rules  no relief  could

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have been granted to the respondent.      The respondent  had entered  the IPS  in 1968.  At that point of  time Rule  16A was  not in  existence. The date of birth which  was recorded  in his  service book  was that of 17th June,  1939. In the application which had been filed by the respondent,  the correctness  of the  contents of  which were duly  certified by  him, it  was clearly indicated that his date  of birth  was 17th  Jun,  1939.  It  is  also  not disputed that  the school  leaving certificate  contains the same date  of birth.  The descriptive  roll of  the services book (Photo  copy of which was placed on record ) also shows the dated  of birth  having been recorded as 17th June, 1939 and this  roll has been signed by the respondent as far back as on 24th December, 1968.      The first  time when  the respondent  agitated for  his date of  birth to  be changed  was  when  he  submitted  his representation his representation dated 4th September, 1982. As on that date Rule 16A as inserted vide notification dated 7th July,  1978 was in existence. This rule had replaced the earlier  Rule   16A  which   had  been   incorporated   vide notification dated  4th December,  1971. Therefore, Rule 16A as incorporated in 1978 was applicable as on the date of his representation and  the question  of  applicability  of  the repealed Rule 16A which had been incorporated in 1971, could not possibly  arise as  the same  was not in existence as on that day.      The Tribunal  approached the  problem in  an  incorrect manner. It  interpreted repealed Rule 16A as incorporated in 1971 and  came to  the conclusion that sub rules (4) and (5) of that  Rule 16A  required a  specific determination of the date of  birth, after  giving  opportunity  to  the  officer concerned. The Tribunal then interpreted the new Rule 16A of 1978 and  concluded that  this did  not apply  to  a  direct recruit who  had entered  the service  before 4th December , 1971 and,  Therefore, determination  under sub rules (4) and (5) of  the original  Rule 16A of 1971 should be done by the Government.      The effect  of a  rule being  substituted by a new rule clearly is  that the old rule, which stands substituted, can under no circumstances have any application atleast from the date when it ceased to exist. With effect from the date when it ceased  to exit.  With effect  from 7th  July, 1978 a new Rule 16A  having been  incorporated in the Rules it was this rule  alone   which  was   applicable  when  the  respondent represented for alteration in the date of birth bu his first representation of 4th September, 1982. Reading Rule 16a as a whole it  is clear  to us  that it  applies  to  all  person belonging to  the All India services who were in service and the said  rule does  not   exclude pre  4th  December,  1971 directed recruits  from its application, as has been held by the Tribunal.      Rule 16A  is a composite rule which was intended to and does apply  to all  person of the All India services to whom the principle  rules of 1958 are applicable.      Sub  rule   (1)  of   Rule  16A  states  that  for  the determination of  the date  of superannuation the date is to be calculated  with  reference  to  the  date  of  birth  as accepted by  the Central Government under this Rule. The use of the word " accepted" in sub rule (1) is indicative of the fact that  except in a case where there may be correction on account of  bona fide  clerical mistake  having occurred the central Government accepts, and does not determine, the date of birth  in the  manner specified  in sub  rule (2) and sub rule (3).  Sub rule  (2) is applicable to a person appointed after commencement  of the  All  India  service  (Death-cum-

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retirement Benefits) Amendment Rules 1971. According to this the date  of birth  of the  appointees as  declared in their application for recruitment shall be accepted bu the central Government as  the date of birth of such persons. The effect of this  is that  atleast as  far as post-4th December, 1971 appointees  are   concerned  the  question  of  the  Central Government accepting  any date  of  birth  other  than  that indicated in  the application for recruitment to the service does not arise. The implication of this clearly is that with the insertion of new Rule 16A (2) there would be no occasion for the entertain and application for alteration in the date of birth,  a the  Government is enjoined to accept only that date which is declared bu such person in his application for recruitment. This  of  course  is  subject  to  the  limited circumstances under  which correction  can be effected under sub rule (4) of Rule 16A, namely, in cases where a bona fide clerical mistake  had occurred  in accepting   the  date  of birth under sub rule (2) or sub rule(3).      The opening  words of  sub rule  (3) of  Rule 16A state that the  said sub  rule applies  in relation to a person to whom sub rule (2) does not apply. As sub rule (2) applies to a person  appointed to  the  All  India  service  after  4th December, 1971  it is  obvious that  sub rule  (3) would  be applicable to  all other officers to whom All India services Rules apply  which  would  necessarily  include  the  direct recruits who  were appointed  prior to  4th December,  1971. There are  no words of restriction in sub rule (3) (a) which can persuade  us to  take a different view. with Rule 16A as incorporated in  1971 having been superseded by the new Rule 16A, if  the contention  of the  respondent is  accepted the effect would  be that  and incongruous situation would arise whereby there  would be  no rule  in existence  dealing with cases of  persons other  than those who were appointed after 4th December,  1971. Neither the plain language of Rule 16A, and sub  rule (30  in particular, nor the intent of the said rule suggests that an artificially restricted meaning should be given to the opening words of sub rule (3) of Rule 16A so as to  exclude pre  1971 direct recruits form its operation. In our  opinion, direct recruits like the respondent who had joined service before 4th December, 1971 would be covered by sub rule  (3) of Rule 16A. Sub rule (3) of Rule 16A requires the central  Government to  accept that date of birth as has been  recorded   in  the  service  book  or  other  official documents as  maintained  bu  the  concerned  government  in respect of  such an officer. Admittedly the date of birth of 17th June,  1939 was  recorded in  the service  book of  the respondent. Under  Rule 16A of 1978 it is this date of birth which was required to be accepted by the Government.      Reading sub rules (2) and (3) together it is clear that whereas in the case of sub rule (2) the date of birth has to be accepted  which  is  indicated  in  the  application  for recruitment but  in the  case covered by sub rule (3) if the date   of birth as recorded in the service book is different form  the  one  which  was  contained  in  the  application, possibly because   of  an alteration having been made at the instance of  the officer  concerned, then  that is  the date which has to be accepted by the central Government.      The date  of birth  as recorded in the service book, in the case  of a pre 4th December, 1971 entrants, and the date a declared by an officer in the application for recruitment, in the  case of  post 4th  December ,  1971 entrants, in the case of post 4th December, 1971 entrants, has to be accepted as correct  by the  central  Government  and  ,  as  already indicated this  can be altered only if under sub rule (4) it is established  that a  bona fide  clerical mistake had been

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committed in  accepting the  date of  birth. It  is for this reason  we   find  that   in  the   orders   rejecting   the representation of  the respondent the Central Government has stated that  there was  no bona  fide clerical mistake which had been committed.      It was faintly submitted that on the basis of the birth certificate obtained  from the sub Registrar’s office by the respondent as  well as  his horoscope it should be held that there was  a bona fide clerical mistake and , therefore, the date of  birth could  be corrected.  We are unable to accept the submission.  Bona fide  clerical error would normally be one where  an officer  has indicated  a particular  date  of birth in  his application  form or any other document at the time of  his employment  but,  by  mistake  or  oversight  a different date  has  been  recorded.  In  the  present  case admittedly the  date of  birth indicated  in the application form filled  in for  the purpose  of taking  the competitive examination was  that of 17th June, 1939. This date was then incorporated in  his service record and this was duly signed by the  respondent. Admittedly  the respondent also believed this to  date of  birth, therefore,  it was not a case where the date of 17th June, 1939 had been incorrectly recorded in the services  book as  a result  of any  bona fide  clerical mistake. In  fact in  his original representation it was not even any  clerical   mistake. The positive case put forth bu the respondent was that it is after the demise of his mother that he  had discovered that his real date of birth was 15th June, 1941 and not 17th June, 1939.      Inasmuch as  Rule 16A  as amended on 7th July, 1978 had come into  operation at  the time  when the  respondent  had first made  his representation  in 1982, it is not necessary to examine  the interpretation  of the  original Rule 16A as introduced on  4th December,  1971 and we express no opinion on the said old Rule as interpreted by the Tribunal.      Before concluding  we may note that learned counsel for the appellant  referred to certain decisions where amendment to the  date of  birth had been allowed. It is not necessary to deal with the said decisions because none of them related to the  relevant Rule  16A on the interpretation of which we find that  this statutory  rule, except  in  cases  where  a clerical error  has occurred, does not entitle an officer to ask for  change in  the date of birth which is once recorded in his  application as  mentioned in sub rule (ii) or in the services book as mentioned in sub rule (iii) of Rule 16A. It is, however,  appropriate to  refer to  one decision  relied upon by  Mr. H.S.  Gururaja Rao,  learned senior counsel for the respondent  which is  of the Himachal Pradesh High Court in Shri Manak Chand Vaidya VS. state of Himachal Pradesh and ors. (1976 (1) SLR 402) . In that case correction of date of birth was  sought by  the state  that the petitioner therein was estopped  from pleading  a different  date of birth when the entry  in that  regard in  his service  record had  been entered on  his representation  at the  time when he entered service. This contention was repelled by the High court with the  observation  that  it  had  not  been  shown  that  the petitioner gained any advantage by representing a particular date at the time of entry into the service.      In matters  relating to  appointment to service various factors  are   taken  into  consideration  before  making  a selection  or   an  appointment.   One   of   the   relevant circumstances is  the age  of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage  had been  gained by  representing   a date  of birth which  is different than that which is later sought to be incorporated.  But it will not be unreasonable to presume

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that when a candidate, at the first instance, communicates a particular date  of birth  there is  obviously his intention that his  age calculated  on the basis of that date of birth should be taken into consideration bu the appointing office. In fact,  where maturity  for a responsible office. In fact, where maturity  is a  relevant factor to assess suitability, an older  person is  ordinarily considered to be more mature and, therefore,  more suitable. In such a case, it cannot be said that  advantage is  not obtained by a person because of an earlier  date of  birth, if  he subsequently claims to be younger in  age, after  taking that  advantage.  In  such  a situation, it  would be against public policy to permit such a change  to enable  longer benefit to the person concerned. This being  so, we  find it  difficult   to accept the broad proposition that  the principle  of estoppel would not apply in such  where the  age of  a person  who is  sought  to  be appointed may  be a  relevant consideration  to  assess  his suitability.      In such a case, even in the absence of a statutory rule like Rule 16A, the principle of estoppel would apply and the authorities concerned  would be  justified in  declining  to alter the  date of  birth. If  such a decision is challenged the court  also ought  not to grant any relief even if it is shown that  the date  of birth,  as originally recorded, was incorrect because  the candidate concerned had represented a different date  of birth  to  be  taken  into  consideration obviously with  a view  that would be to his advantage. Once having  secured   entry  into   the  service,   possibly  in preference  to  other  candidates,  then  the  principle  of estoppel would clearly be applicable and relief of change of date of birth can be legitimately denied. To that extent the decision in Manak Chand’s case does not lay down the correct law.      For the aforesaid reasons while allowing the appeal the order of the Tribunal is set aside the effect of which would that OA  No. 383 of 1994 filed by the respondent would stand dismissed and  the date  of birth  of 17th  June,  1939,  as recorded in  his service  book would remain unaltered. There will be no order as to costs.