Judgment:
1. A declaration is sought to be obtained by the applicant in this O.A. that the correct date of birth of the applicant was 20.12.1946 and not 11.1.1946. In the alternative, the respondents are sought to be directed to consider the representation of the applicant dated 6.10.1993 in accordance with law, within the time limit as may be prescribed by the Tribunal.
2. The applicant was appointed as STA (Senior Technical Assistant) in Geological Survey of India at Visakhapatnam on 27.2.1978. In March, 1988 he was promoted as Assistant Geologist and in March, 1995 as Geologist (Junior).
3. His date of birth as recorded in his Service Book is 11.1.1946. His parents gave the birth date as 11.1.1946 at the time of his admission to school and the same-was carried throughout his education and in all certificates. Further according to the applicant, he was also under a bonafide impression that his date of birth was 11.1.1946.
4. The applicant's case is that while searching for some old important documents relating to property in the first week of October, 1993 the applicant's parents found an extract from the register of births from which it came to their knowledge that the applicant's correct date of birth was 20.12.1946 and not 11.1.1946. The applicant, therefore, made a representation dated 6.10.1993 calling upon the respondents to make necessary change in the date of his birth in the service register. But the first respondent did not respond even after a reminder dated 2.5.1997 forwarded through proper channel. The first respondent eventually issued the impugned order dated 26.9.1997 stating that the applicant's request could not be acceded to and therefore, it became necessary for the applicant to file this O.A.5. The claim advanced by the applicant is vehemently denied by the respondents. Learned counsel Mr. Gopal Rao for the respondents submitted that in Rule 79 of General Financial Rules it is provided that every person newly appointed to a service or a post under the Government shall at the time of appointment declare the date of birth by Christian era with confirmatory documentary evidence such as Matriculation certificate, Municipal birth certificate and son on.
Sub-rule (2) of Rule 79 provides that the actual date or the assumed date determined under Rule 80 shall be recorded in the Service book or any other record that may be kept in respect of the Government servant's service and once recorded, it cannot be altered except in case of a clerical error.
6. On page 825 of "Swamy's General Financial Rules" while extracting the relevant portion; of G.I., MHA, OM No.F.9/1/61 -Ests(A) dated 17th November, 1962 it is mentioned that- "It has been decided that request from Government servants for alteration of the date of birth should not be entertained after the preparation of their Service Books and in any event not later than the completion of the probation period or declaration or quasi-permanency, whichever is earlier. The date of birth of a Government servant may, however, be altered at a late stage by a Department of the Central Government and Administrator or a Head of Department, if he is satisfied that a bona fide clerical mistake has been committed and that it should be rectified." It is furt her stated on page 825 of the said book that the date on which a Government servant attains the age of 58 years or 60 years, as the case may be, shall be determined with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the appropriate authority on production as far as possible of confirmatory documentary evidence such as High School or Higher Secondary or Secondary School Certificate or an extract from Birth Register. The date of birth so declared by the Government servant and accepted by the appropriate authority shall not be subjected to any alteration except as specified in the note. An alteration of date of birth of a Government servant can be made, with the sanction of Ministry or Department of the Central Government or the Controller and Auditor General in regard to the persons serving in the Indian Audit and Accounts Department or an Administrator of a Union Territory under which the Government servants are serving, if- (a) a request in this regard is made within 5 years of his entry into Government service.
(b) It is clearly established that a genuine bonafide mistake had occurred; and(c) xx xx xx xx xx 7. It is further submitted by the learned counsel Mr. Gopal Rao on behalf of the respondents that the applicant could well be presumed to be in possession of the extract of the Birth Register on 7.6.1969 but held back the same till 1993. Further according to Mr. Gopal Rao, under Rule 79(2) of the GFR, the actual date or assumed date as determined under Rule 80 had to be recorded in the history of service, Service Book or any other record maintained by the Government and that the birth date once recorded could not be altered except in the case of any clerical error.
8. Mr. Gopal Rao also submitted that in terms of G.I., MHA, OM No.F.9/l/61-Eats(A) dated 17th November, 1962 a request from Government servant for alteration of date of birth could not be entertained after preparation of service book and in any event not later than the completion of probation period or declaration of quasi-permanency, whichever was earlier.
9. The applicant has filed an affidavit of his mother in this case in which the mother states that she gave birth to the applicant on 20.12.1946. She further states that she had not recorded her son's real date of birth as 20.12.1946 as they were not so particular about such things in those days. She further makes a statement that they furnished the real date of birth of the applicant to the school authorities as 11.1.1946 as the school authorities merely stated that "as such some date of birth" was required for admission. She also states in her affidavit that she was not aware of her father reporting the birth of her son (applicant) to the authorities for entry into Birth & Death Register. She further states that in October, 1993 when they were searching for some old documents regarding their properties, they found the extract of the date of birth of the applicant from the almirah where the documents were kept.
10. The statements made by the applicant's mother in her affidavit are sought to be controverted by the respondents by filing an additional counter affidavit to say that the applicant had not filed the original extract of the register of date of birth and therefore, the same could not be read in evidence. Ordinarily it is true that xerox copy of an official document cannot be read in evidence. However, a note is required to be taken of the fact that the applicant forwarded a copy of the original extract from the register of births to the Director General, Geological Survey of India, Calcutta along with his letter dated 6.10.1993. The receipt of the said letter dated 6.10.1993 along with its enclosures is not denied by the Director General and the contents of the enclosure to that letter were also not disputed at that point of time. At this late stage, therefore, the submission made by the learned counsel for the respondents cannot be accepted that merely because a xerox copy of the said extract was produced in the Court along with the present O. A., it could not be read in evidence.
However, it will be my endeavour to take a very cautious approach regarding the entries made in the said extract.
11. Mr. Gopal Rao submitted that the applicant made a representation; on 6.10.1993 for altering his birth date under the pretext that the applicant was not aware of his correct birth date prior to that date.
Even if what is claimed by the applicant is not disputed. Nothing convincing comes on record to show at whose instance the extract was obtained on 7.3.1969. In the absence of any clarification on that aspect the presumption is that the same was obtained by the applicant himself or by his father or mother. In that view of the matter therefore, as correctly submitted by Mr. Gopal Rao, there was no substance in the plea taken by the applicant that his birth date was wrongly recorded or that it was required to be rectified.
12. For substantiating his submission, the learned counsel for the applicant referred to and relied upon the case of Hiralal v. Union of India, (1987(1) ATR (CAT) 414 (Principal Bench) in which it was held that the period of limitation prescribed as five years for alteration of date of birth was applicable only to the Government servants who joined in service after 15.12.1979. This decision of the Principal Bench of this Tribunal in support of the views taken by them also refers to the decision of the Supreme Court in State of Assam v.D.P.Deka, AIR 1975 SC 173, in which the Supreme Court observed that a public servant may dispute the date of birth as entered in the service record and may apply for correction of the record, but he cannot claim that he has been deprived of the guarantee under Article 311 (2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record. It is further observed that ordinarily when an application is made for rectification of age by a public servant, the State should give the applicant proper opportunity to prove his case and should give due consideration to the evidence brought before it.
13. The Principal Bench of this Tribunal after discussing at length the situation emerging from the case law, held that whenever a question arose whether the entry of the date of birth in the service record was correct or not that had to be enquired into and that had been done in the case before the Principal Bench in accordance with law. It is further observed that Note-5 to the Fundamental Rule 56 governing the correction of date of birth in the service record substituted by Government of India, Ministry of Home Affairs, Department of Personnel and Administrative Reforms Notification No. 19017/79-Estt-A dated 30th November, 1979 published as SO 3997 in the Gazette of India dated 15th December,1979 took effect from that date. It laid down that a request for correction of the date of birth in the service record should be made within 5 years of entry into Government service. But obviously the 5 year period of limitation prescribed for the first time under the said SO 3997 could not be applied to those Government servants who were in service by that date for more than 5 years. In issuing the said SO it could never have been the intention of the Government that there should be two classes of Government employees and those who had entered the Government service prior to 15.12.1979 whose date of birth could not be corrected howsoever erroneous that entry may be, and those who entered the service within 5 years of the said SO were thereafter entitled to get corrected the entry as to the date of birth in the service record. That would be an in vedious discrimination unsustainable in law. The Bench further observed that the respondents referred his representation for enquiry by the District Magistrate and now that the report of the District Magistrate confirmed the applicant's claim the respondents could not be allowed to turn round and reject it holding that the application was not filed within 5 years of the entry into service and insist that he had attained the age of superannuation based on the original entry in the service record.
14. In the instant case, as already stated earlier the applicant could well be presumed to have acquired the knowledge that his date of birth was erroneously mentioned in his service record on 7.6.1969 when by virtue of obtaining the extract from the Register of births, it came to his knowledge that his correct date of birth was 20.12.1946 instead of 11.1.1946 on the doctrine of reasonable 'inference' as already explained cat Her, The applicant is totally silent on this aspect of the case at whose instance the certificate was obtained. A question, of course, may arise as to what prevented the applicant to give 20.12.1946 the date of his birth if the same was known to the applicant right from 7.6.1969. The same could only by answered that the applicant did so for the reason best known to him. In any case we are not satisfied looking to the facts and circumstances of the case that the applicant came to know about his correct birth date in 1993 only.
15. It is true that the authorities invoked by the applicant do make it obligatory upon the department to conduct an enquiry before coming to the conclusion whether the birth date already recorded in the service record is correct or the rectification proposed to be made by the Government servant is correct. However, in the instant case, the only factor which requires to be examined is whether the extract of the Birth Register which was issued on 7.6.1969 came into the hands of the applicant only in 1993. This proposition is such which can not be enquired into at this stage for coming to any definite conclusion whether the extract was accidentally found and whether the certificate was obtained by some one else in 1969 not within the knowledge of the applicant or his parents and was kept inside the almirah without the knowledge of the applicant's parents. This is too far-fetched a story advanced by the applicant and we believe that no method of enquiry could be instituted to ascertain the correctness of these facts and therefore, enquiry in the instant case cannot reasonably be insisted upon. The applicant's case cannot be believed that he came to know about his correct birth date only in 1993. If five years' limitation is allowed even from 15.12.1979 being the date prescribed in SO 3997, as already discussed earlier, the applicant's representation for correction in his birth date falls far beyond the outer limit.
16. On one hand I do not find any consistency in the submission made on behalf of the applicant that the applicant came to know about his correct date of birth only in 1993 and on the other hand, the question of enquiry has no scope and therefore, the applicant, in my opinion, fails to establish his case for rectifying the entry relating to his birth date in his service record.