Court No. - 46
Case :- WRIT - A No. - 16310 of 2016
Petitioner :- Swami Nath
Respondent :- Union Of India And 2 Others
Counsel for Petitioner :- Hari Narayan Singh,O.P. Singh,O.P.Singh,Sushil Kumar Rao
Counsel for Respondent :- A.S.G.I.,Brijesh Kumar,Gyan Prakash
Hon'ble Surya Prakash Kesarwani,J. Hon'ble Vikas Budhwar,J.
Heard learned counsel for the petitioner and Sri Brijesh Kumar, learned counsel for respondents.
This writ petition has been filed praying to quash the impugned order dated 4.11.2015 in Original Application No.280 of 2015 (Swami Nath Vs. Union of India and two others) passed by the Central Administrative Tribunal Allahabad Bench, Allahabad.
Briefly stated, facts of the present case are that the petitioner was engaged as casual labour on 12.10.1981. At the time of his engagement, he had shown his date-of-birth as 6.10.1955 based on medical report. In the year 1993, he produced a transfer certificate dated 31.12.1976 showing his date-of- birth as 7.1.1961 and on that basis, the General Manager has changed his date- of-birth from 6.10.1955 to 7.1.1961 vide order/letter dated 13.5.1993.
Thus, the petitioner got his date-of-birth changed after about 14 years of entering into employment as casual labour. As per Office Memorandum No.F No.19017/2/92 Estt (A) Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel Training) dated 19.5.1993 issued pursuant to the order of the Hon'ble Supreme Court dated 9.2.1993 in Civil Appeal No.502 of 1993 (Union of India Vs. Harnam Singh), a request for alteration in date-of-birth may be considered if the conditions stipulated in note (6) below FR 56 are strictly complied. The note 6 below (FR-56) published as S.O.3997 in the Gazette of India dated 15.12.1979 and came into force from that date, provides, inter alia that a request for alteration in date-of- birth can be made by a Government Servant only within five years of his entry into Government Service.
In the above referred Office Memorandum dated 19.5.1993, the Government of India has referred to the F.No.19017/2/92-Estt.(A) dated 30.11.1979 (incorporated as Note 6 below FR-56) as well as the judgment of Hon'ble Supreme Court in Civil Appeal No.502 of 1993 (Union of India Vs.Harnam Singh) dated 9.2.1993, which is reproduced hereinbelow:-
“F.No. 19017/2/92-Estt.(A) Government of India Ministry of Personnel, Public Grievances & Pensions (Department of Personnel & Training) *** New Delhi, dated the 19.5.93 OFFICE MEMORANDUM Subject: Alteration of date of birth of a Government Servant.
Civil Appeal No. 502 of 1993- Union of India Vs. Harnam Singh- Judgment dated 9th February, 1993 As Ministry of Finance etc. are aware, the DP & AR notification No. 19017/7/79- Estt. (A) dated 30th November, 1979 (Incorporated as Note 6 below FR-56) which was published as S.O.1997 in the Gazette of India dated 15.12.1979 and came into force from that date, provides, inter alia , that a request for alteration in date of birth can be made by a Government servant only within 6 year of his entry into Government Service. Further while incorporation the condition of 5 years time limit for making for alteration in the date of birth in the Service records, no distinction was made in respect of Government servants already in service vis- a vis the further reoruits. Despite the clear rule form various Ministries/Departments seeking clarification regarding of 5 years to employees who were appointed to civil posts prior to the date of effect of the Notification ie, 15.12.1979. In a recent Judgment given by the Supreme Court on 9.2.1993 in Civil Appeal No. 502 of 1993 (Union of India Vs Harnam Singh). The Supreme Court ha inter alia observed that in regard to the Government Servants who has joined service prior to 1979. the correction of date of birth should be made within a period of 5 Years from 1979. Relevant extracts from the said judgment are reproduced below.
“It would be appropriate and it tune with harmonious construction of the provisions to hold that in the case of those Government servants who were already in service before 1979, for a period of more than five years, and who intended to have their date of birth corrected after 1979, may seek the correction of date of birth within a reasonable time after 1979 but in any event not later than five years after the coming into force of the amendment in 1979. This rule making authority”.
2. Reference are also frequently received in this Department recommending belated requests from Government servants for alteration in date of birth giving some justifications or other in supports of the request. The observations made by the Supreme Court in the case cited in para l above on this point are reproduced below.
“In ordinate and unexplained delay or laches on the part of the respondent to seek the necessary correction would in any case have justified the refusal of relief to him. Even if the respondent has sought correction of the date of birth within not have non- suited him but he did not seek or five years after the incorporation of note 5 to FR 56 in 1979 either. His inaction for all this period of about thirty five years from the date of joining service, therefore precludes him service record was not correct.”
3. The Government policy regarding rejection of belated claim for alteration in date of birth is thus reinforced by the observations made by the Supreme Court in the judgment in Civil Appeal No. 502 of 199 (Union of India Vs. Harnam Singh). The Ministry of Finance etc. is therefore requested to keep this position while considering any request from a Government Servant for alteration in his date of birth. In other words, it will not be appropriate to consider any request for alteration in date of birth if the conditions stipulated in note 6 below FR 56 are not strictly fulfilled.
4. It is request that these instructions may also be duly brought to the notice of the Attached Subordinate office under the Ministry of Finance etc. for information and compliance.
(V. NATRAJAN) DEPUTY SECRETARY TO THE GOVT. OF INDIA”
Before restoring the initial date-of-birth of the petitioner recorded in the service record at the time of entry in employment as casual labour, the authority concerned issued a show cause notice to the petitioner dated 11.12.2014 requiring him to submit reply/explanation. The explanation was not submitted by the petitioner within the stipulated period.
On 27.12.2014, the order was passed canceling the change in date-of- birth and restoring the date-of-birth of the petitioner, as it originally existed in records.
As per his date-of-birth, the petitioner retired from service on 31.10.2015 on attaining the age of superannuation.
Aggrieved with the order dated 27.12.2014, the petitioner filed Original Application No.280 of 2015, which has been dismissed by the impugned order dated 4.11.2015 passed by the Central Administrative Tribunal, Allahabad Bench Allahabad. Aggrieved with this order, the petitioner has filed the present writ petition.
It is undisputed that the petitioner entered in employment as casual labour on 12.10.1981. His services were regularised from 11.1.1983. His date- of-birth was recorded as 6.10.1955.
The notification being F.No.19017/2/92-Estt.(A) dated 30.11.1979 (incorporated as Note 6 below FR-56) was published as S.O.3997 in the Gazette of India dated 15.12.1979, which specifically provides that a request of alteration in date-of-birth can be made by Government servant only within 5 years of his entry into Government service.
The Hon'ble Supreme Court in Civil Appeal No.502 of 1993 (Union of India Vs. Harnam Singh) has also held that Government Servant may seek correction in date-of-birth within a reasonable time after 1979, but in any event, not later than five years.
The aforesaid office memorandum and the notification referred therein as well as the judgement of the Hon'ble Supreme Court in Harnam Singh (Supra) leave no manner of doubt that the outer limit for making a request for change in date-of-birth by a Government servant, is five years.
In the present set of undisputed facts, the correction was made by the General Manager on mere asking. The show cause notice dated 11.12.2014 issued by the authority to the petitioner was also not replied by the petitioner within stipulated period. Even alleged reply submitted after the stipulated period, also does not contain any reply to point number 1, 2 & 5 of the show cause notice.
In the impugned order, the Tribunal has recorded finding of fact based on consideration of relevant material on record that the transfer certificate, on the basis of which the petitioner allegedly got his date-of-birth changed, is manipulated.
We have also perused photostat copy of the alleged transfer certificate filed along with writ petition and we find that according to the petitioner, he possessed the aforesaid alleged transfer certificate allegedly obtained by him on 31.12.1976, while the petitioner entered in Government employment as casual labour on 12.10.1981 and was regularised on 11.1.1983. He claimed for change of his date-of-birth after more than 12 years, in the year 1993, on the basis of the aforesaid alleged transfer certificate dated 31.12.1976 which does not inspire confidence.
Neither the alleged transfer certificate inspires confidence, nor the date- of-birth of the petitioner could be changed as per notification dated 30.11.1979 mentioned in Office Memorandum dated 19.5.1993, nor the act of changing date-of-birth of the petitioner by an officer on mere asking can be said to be justified or valid in law. In fact, the correction made in the date-of-birth was without authority of law.
For all the reasons aforestated, we do not find any good reason to interfere with the impugned order of the Central Administrative Tribunal, Allahabad Bench, Allahabad dated 4.11.2015 passed in O.A. No.280 of 2015 (Swami Nath Vs. Union of India and two others).
Consequently, the Writ Petition is dismissed. However, there shall be no order as to costs.
Order Date :- 25.10.2021 piyush