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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