JUDGMENT S.H.A. Raza and Bhagwan Din, JJ.
1. This is well-settled that generally the Court should not interfere in the matter of correction of the date of birth, particularly when the representation to correct the date of birth is made at a belated stage. But in this case, we have to consider certain novel features which are not generally found in the case pertaining to correction of date of birth. The petitioner in the Form of High School Examination, mentioned his date of birth as 26.10.1941 but the certificate which was issued to him mentioned 1.2.1938 as the date of birth. The petitioner in his application for appointment on the post of Development Officer mentioned the same date of birth, which was indicated in the High School Certificate, i.e., 1.2.1938. The petitioner was fortunate enough to be selected as Development Officer in the Life Insurance Corporation of India. At the time of attaining his superannuation on 31.1.1996 the petitioner was working as Branch Manager in the Life Insurance Corporation of India.
2. Before joining the services in the Life Insurance Corporation of India as Development Officer, the petitioner on 10.7.1970 applied to the Board of High School and Intermediate for correction of his date of birth, Indicating that the date of birth entered into his certificate was patently wrong, inasmuch as, he had mentioned 26.10.1941 as his date of birth in his Examination Form. The matter remained pending before the Board of High School and Intermediate, inspite of the repeated efforts of the petitioner to get the matter decided.
3. The petitioner applied before the Life Insurance Corporation of India for the correction of his date of birth. The Manager (Personnel), Life Insurance Corporation of India on 10.3.1995. Indicating the facts mentioned in the foregoing paragraphs, asked the petitioner to send the original High School Certificate along with photostat copy, so after attesting the photostat copy it may be sent to the Regional Office of the Life Insurance Corporation of India for necessary action.
4. On 30.3.1995 the Manager (Personnel), Life Insurance Corporation of India acknowledging the receipt of the petitioner's letter dated 30.3.1995, alongwith registered letter, dated 6.2.1995 to the Secretary, Board of High School and Intermediate Examination. Allahabad and the letter dated 3.3.1995 issued by the Life Insurance Corporation of India to the petitioner, the petitioner was asked to submit his original certificate of High School, alongwith two photostat copies of the same for information and necessary action at their end. The letter also indicated that inspite of the earlier letter the same had not been enclosed, the petitioner was directed to comply with the aforesaid requirement to enable the Life Insurance Corporation of India to proceed further in the matter. Similar letter was again addressed to the petitioner on 3.8.1994, in which he was directed to furnish a copy of the amended/corrected copy of the High School Certificate to the Life Insurance Corporation of India for taking necessary action.
5. In the meantime the petitioner filed a writ petition bearing No. 34762 of 1995 before this Court, wherein, the Board of High School and Intermediate was directed to rectify the mistake which has occurred in the High School Certificate of the petitioner. In pursuance of the High Court order dated 1.12.1995 the Board of High School and Intermediate considered the representation of the petitioner and came to the following conclusions :
(i) According to Primary School Certificate, issued to the petitioner, his date of birth was 26.10.1941.
(ii) According to the Junior High School Certificate the date of birth of the petitioner is 26.10.1941.
(iii) From the report of the Enquiry Officer of the institution from where he appeared in the High School Examination the date of birth of the petitioner was verified as 26.10.1941.
(iv) The mistake was a clerical one and after considering the gamut of the entire controversy, the Board of High School and Intermediate came to the conclusion that the mistake in mentioning the date of birth in High School Certificate was a clerical one and ordered to correct the same as26.10.1941.
6. On the basis of conclusive materials on record, a clear case was made out hence the Board rectified the mistake regarding the date of birth of petitioner in the High School Certificate. To the misfortune of the petitioner the Board of High School and Intermediate despatched a letter to the Life Insurance Corporation of India only on 6.2.1996, which was received in the office of the Life Insurance Corporation of India on 12.2,1996, when the petitioner was already ordered to be retired w.e.f. 31.1.1996.
7. However, it is pertinent to mention here that even on 25.1.1996 the petitioner addressed a letter to the Senior Divisional Manager, Life Insurance Corporation of India, Divisional Office, Dehradun, which reads as under :
"The Senior Divisional Manager L.I.C. of India Divisional Office Dehradun Dear Sir, Reg : Correction in the date of birth in my H.S. Certificate of 1966.
This is further to my letter dated 12.1.1996 alongwith photostat copy of the order dated 21.12.1995 passed by the Hon'ble High Court, Allahabad.
In this connection. I have to inform you that on the direction issued by the High Court to the Secretary, U. P. Board of Education, Allahabad the Board Office has made the necessary correction in my date of birth as 26.10.41 and the same is being sent through proper channel. Since the document the original High School Certificate cannot be handed over to me personally as per rules of the Board the High School Certificate duly corrected along with detail compliance order by the Secretary, U. P. Board of Education, Allahabad is being sent to the Principal. Government Inter College, Rudraprayag, district Garhwal as such it will take another couple of weeks to reach my hand. In view of the above position, you are requested to kindly stop all proceedings of my retirement on the basis of wrong date of birth.
Thanking you.
Yours faithfully (D. D. Bhatt) Advance copy to the Zonal Manager, L.I.C. of India, North Central Zone. The Mall, Kanpur for Information and with a request to kindly issue instruction to the concerned department not to proceed with my retirement on the basis of wrong date of birth.
(D. D. Bhatt) Branch Manager L.I.C. of India Branch Office Rishikesh."
8. In para 12 of the writ petition the petitioner stated that he Informed the Senior Divisional Manager of the Life Insurance Corporation of India by means of his letter dated 25.1.1996 that his date of birth had been corrected. This fact has not been denied in the counter-affidavit and only this much is Indicated that it pertains to matter of record.
9. In the aforesaid letter, the petitioner had categorically stated that Board of High School and Intermediate Examination had already made the necessary correction in the date of birth of the petitioner as 26.10.1941, which was being sent through proper channel. It was submitted that the said documents in original was not handed over to the petitioner as per rules of the Board and the certificate duly corrected along with details was to be sent to the Principal, Government Inter College, Rudraprayag, district Garhwal, as such it would have taken another couple of 'weeks to reach to the petitioner, The petitioner urged that in view of the said position the authorities of the Life Insurance Corporation of India should not have retired him on the basis of the wrong date of birth. It appears that request of the petitioner was not heeded to, and he was retired on 31.1.1996.
10. Sri Satish Chaturvedi, learned counsel appearing on behalf of the respondents has drawn the attention of this Court towards certain Administrative Instructions issued under Regulation 4 of the Life Insurance Corporation of India (Staff) Regulations, 1960 pertaining to verification of date of birth of employees. Clause 4 of the said Regulation reads as under :
(1) The date of birth of every employee of the Corporation shall be entered in the staff record by an -order duly made in accordance with the provisions of these Instructions.
(2) No order for entry shall be made except on the basis of a listed document relating to the employee concerned and unless the document demonstrably pertains to the employee and the authority passing the order is satisfied that it is the most authentic, it has not been tampered with and it can be relied upon that it above the correct date of birth of the employee.
(3) Where, as on the date of these Instructions, an entry has been made on a verification carried out on or after 1st September, 1956 either on the basis of any of the proofs specified in Entry Nos. 1, 2 or 3 of the First Schedule or after examining such proofs but accepting any other listed document, such entry shall be deemed to have been made under these instructions by an order of the competent authority.
(4) Subject to the provisions of these instructions, the entry shall be conclusive evidence of an employee's date of birth for the purpose of his service in the Corporation, and notice of retirement or retirement or any other action on the basis thereof shall be final.
Clause 5 provides:
"Where the employee has produced a single document being a document specified in Entry Nos. 1, 2 or 3 of the First Schedule or where such employee has not studied upto such level as to obtain a document specified in Entry No. 1 of the First Schedule and has produced a document specified in Entry No. 4 or 5 and in either case there is no report nor does he contend that his date of birth is shown differently in any other listed document which may be available and there is nothing in the files of the Corporation to show any other date of his birth, the verifying authority may order that his date of birth be entered in the staff record on the basis of the document produced by him if it is satisfied with the document produced."
Clause 5 further provides :
"(1) in any case where no entry has been made, or where entry has not been made under these instructions the verifying authority shall take action for duly recording the date of birth of the employee in the staff record in accordance with these instructions.
(2) Every employee of the Corporation shall, as soon as he is called upon so to do, produce any of the listed documents that may be available in proof of his date of birth and comply with and above all orders and directions which may be given to him in this behalf by any person or persons under whose jurisdiction, superintendence or control, he may, for the time being, be placed."
Clause 7 (1) provides :
"Where an entry has been made on the basis of a listed document after the date of Issue of these instructions and there is reason to believe that the document relied on did not record the correct date of birth of the employee or in any case where the date of birth is deemed to have been entered under these instructions by virtue of sub-clause (3) of clause 4, the competent authority may call for or procure such other listed documents as may be available and pass orders confirming or altering the date of birth previously entered in the staff record."
Clause 9 (1) provides :
" "Every employee shall have a right of appeal to the appellate authority against any order which is deemed to have been passed under sub-clause (3) of clause 4 or any order passed under clauses 6, 7 or 8 for entering his date of birth in the staff record."
11. It was contended by Sri Satish Chaturvedi, that on the admission of the petitioner that his date of birth was 1.2.1938, the said date was entered into the service record of the petitioner, which is conclusive and can be altered only in accordance with the administrative instructions issued under the Regulations. He also submitted that at any rate, the petitioner had a right of an appeal and he cannot maintain the present writ petition.
12. As far as the first ground is concerned, the writ petition was filed on 29.10.1997. The petition was entertained and the respondents were directed to file the counter-affidavit. The counter-affidavit has been filed. The rejoinder-affidavit has also been filed. The case was heard today. No doubt the administrative instructions provide for filing of an appeal but the question which remains to be decided is, as to whether, on the ground of availability of an alternative remedy the writ petition, which has been entertained can be thrown out and the petitioner be relegated to the appellate authority. The bar of the alternative remedy is nothing but a matter of self-imposed discipline which the Courts have imposed upon themselves for the reason that the jurisdiction of Article 226 of the Constitution of India, should be invoked, after exhausting the alternative remedies available to an aggrieved person.
13. As far as the history of this case is concerned, the petitioner has been agitating about the correction of his date of birth since the year 1970 before the Board of High School and Intermediate, but as his representations and reminders have gone into the deaf ears, he was constrained to file a writ petition bearing No. 34762 of 1995. A direction was issued to the Board of High School and Intermediate Examination to rectify the mistake in the High School Certificate. The mistake was rectified on 25.1.1996, six days before the petitioner was retired from service. The authorities of the Life Insurance Corporation of India were informed on that date about the said rectification of the mistake, but the petitioner was retired from service on the basis of that his date of birth into the service record, i.e., 1.2.1938. If he would have not been retired on the basis of his alleged date of birth as 1.2.1938, he would have continued to work in Life Insurance Corporation of India upto 26.10.1999 or 31.10.1999. We are of the view that the petitioner was deprived of his service benefit unlawfully.
14. In view of the aforesaid situation, no useful purpose would be served if we relegate him to appellate authority for determination of the question, as to whether, his retirement on 31.1.1996 was proper or not.
15. As far as the second contention of Mr. Chaturvedi is concerned, we have gone into very minutely the administrative instructions pertaining to verification of date of birth of the Life Insurance Corporation's Employees. The petitioner was called upon by the Life Insurance Corporation of India authorities to produce the corrected copy of the certificate, The order was passed on his representation. No opportunity was given to him to place before the authority concerned his version, about the alleged incorrect entry entered into his service record. Even when he drew the attention of the authorities concerned that his date of birth had been corrected by the Board of High School and Intermediate Examination, the authorities did not allow him any opportunity to verify from the Board of High School and Intermediate Examination as to whether the entry into the High School Certificate was rectified or not. The order retiring him from service w.e.f. 31.1.1996 and the subsequent orders dated 8.4.1996 and 23.9.1996. rejecting his representations, which have been impugned in the writ petition are patently non est, as well as, suffer from arbitrariness, and violation of principles of natural justice.
16. In view of what has been indicated, hereinabove, the writ petition succeeds. The action of the respondents in retiring the petitioner on 31.1.1996 is declared illegal and void. The impugned orders dated 8.4.1996 and 23.9.1996 (contained as Annexures-11 and 15% to the writ petition) passed by the Zonal Manager. Life Insurance Corporation of India are quashed. The petitioner will be paid all consequential benefits arising therefrom. However, it will be open for the respondents either to pay to the petitioner the salary for the entire remaining period, including the arrears of the salary or restore him on the post from which he was retired and allow him to work till he attains the age of superannuation treating his date of birth as 26.10.1941.