Chattisgarh High Court
Banshi Maity vs Union Of India on 20 May, 2020 1
NAFR
HIGH COURT OF CHHATTISGARH BILASPUR
Order reserved on 12.02.2020
Order delivered on 20.05.2020
Writ Petition (S) No.908 of 2020
Banshi Maity son of late Nalini Maity, aged about 55 years,
R/o Qtr. No.989/4, New Railway Colony, Bilaspur, District
Bilaspur Chhattisgarh
—- Petitioner
Versus
1. Union of India, through the Secretary, Ministry of Railways,
Rail Bhawan, Raisena Road, New Delhi
2. General Manage, South East Railway Bilaspur Division
Bilaspur, District Bilaspur Chhattisgarh
3. Senior Divisional Manager, South East Central Railway
Bilaspur Division Bilaspur, District Bilaspur Chhattisgarh
4. Chief Personnel Officer, South East Central Railway
Bilaspur Division Bilaspur, District Bilaspur Chhattisgarh
5. Assistant Personnel Officer, South East Central Railway
Bilaspur Division Bilaspur, District Bilaspur Chhattisgarh
—- Respondents
For Petitioner : Shri Raghvendra Pradhan, Advocate
For Respondents/Railways : Shri Abhishek Sinha, Standing Counsel
Hon’ble Shri P. R. Ramachandra Menon, Chief Justice
Hon’ble Shri Parth Prateem Sahu, Judge
C A V Order
Per Parth Prateem Sahu, Judge
1. The Petitioner has challenged the correctness and
sustainability of the order dated 03.12.2019 passed by the Central
Administrative Tribunal, Jabalpur Bench, Circuit Sitting at Bilaspur
(hereinafter referred to as ‘CAT’) in Original Application
No.203/00236/2018 whereby the original application preferred by
the Petitioner was dismissed.
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2. Facts of the case in nutshell are that, the Petitioner was
appointed as Bearer on 09.05.1985 with the Respondent-
Department in Bilaspur Division. He submitted representations
before the Respondent Authorities on 10.10.2009, 15.07.2010,
05.12.2012, 05.08.2013 and 21.11.2014 for correction of his date of
birth in service record as 10.04.1961 in place of 09.03.1955.
Subsequently, one reminder representation was also submitted on
02.02.2015. When his representations were not decided by the
Respondent-Department, he preferred Original Application bearing
No.203/00134/2015 before the CAT. The CAT taking into
consideration the nature of dispute raised by the Petitioner in the
original application, disposed off the same with a liberty to file
appropriate application before the General Manager requesting him
to consider correction of his date of birth in service record on the
basis of affidavit submitted by the Petitioner at the time of joining of
service. The Petitioner submitted representation in pursuance to the
liberty granted by the CAT on 13.02.2015 and when the
representation was not decided by the Respondent-Department, the
Petitioner submitted reminder letter followed by legal notice dated
09.05.2016. The representation submitted by the Petitioner was
considered and dismissed.
3. The Petitioner thereafter again approached the CAT by filing
Original Application No.203/00236/2018 on the grounds mentioned
therein. The Respondents after service of notice entered their
appearance and submitted reply to the original application. The
Respondents have pleaded that the Petitioner was superannuated
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from service with effect from 31.03.2015, but he has not enclosed or
brought on record the order of superannuation and approached the
CAT in the year 2018, which is beyond the prescribed period of
limitation. The order of rejection of application dated 01.08.2016 has
not been challenged, which is an order passed by the Chief
Personnel Officer. It was also pleaded that the Department has
already considered the representation submitted by the
Petitioner/Applicant in the light of Rule 145(3)(iii) RI of the Railway
Board Establishment Serial No.17/72 dated 18.01.1972. The date of
birth mentioned in the physical fitness certificate and medical card
cannot be said to be an authentic document and the application for
correction of date of birth has been made at the fag end of his
service without specifically mentioning as to how and when the
Petitioner/Applicant get knowledge of wrong recording of his date of
birth in service record. Lastly, it was also mentioned that the date of
birth of the Petitioner/Applicant has been verified from the
Headmaster of the Kenda Dangri Middle School Calooniya, District
Singbhum, in which, the Petitioner took education up to Class-VII,
for the purpose of verification of his date of birth. Vide letter dated
19.12.2014 (Annexure R/2), it was intimated by the Headmaster that
the name of Shri Banshi Bandan Maity S/o Shri Nalini Maity was not
properly mentioned/founded in their school admission register, but
the name of Banshi Bandhan Mohanty S/o Nalini Kant Mohanty,
Village Chaluniya Post Kenda Dangri, P.S. Chakulia, East Singbhum
is mentioned and the date of birth recorded against Shri Banshi
Bandan Mohanty is 11.04.1953 as per admission register of the
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School.
4. The learned CAT after considering the pleadings and
submissions made by the respective counsel appearing before it,
has taken note of Rule 145(3)(iii) RI of the Railway Board
Establishment Serial No.17/72 dated 18.01.1972 and also the
information supplied by the Headmaster of the Kenda Dangri Middle
School Calooniya, District Singbhum dated 19.12.2014 (Annexure
R/2), dismissed the original application vide order dated 03.12.2019.
5. Shri Raghvendra Pradhan, learned counsel for the Petitioner
submits that at the time of joining of service, the Petitioner has
submitted an affidavit dated 10.04.1985, in which, it has been
specifically mentioned the date of birth as 10.04.1961, which was
one of the relevant documents for the purpose of considering the
date of birth of an employee. The CAT dismissed the application by
taking one of the grounds of delay, which in fact, is not correct
observation or approach of the CAT as the Petitioner has filed
several representations one after the other since 10.10.2009 till
21.11.2014. The Respondents for the first time considered the
representation dated 21.11.2014 and rejected the same by refusing
to correct the date of birth of the Petitioner on the ground that the
date of birth cannot be corrected after lapse of 29 years of service.
He pointed out that the delay in approaching the CAT is on account
of non-considering and not deciding the representations submitted
by the Petitioner with the Respondent-Department timely and in
between, the Petitioner was made to superannuate from service with
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effect from 31.03.2015. Learned counsel for the Petitioner also
submits that Establishment Code (Vol. I) of the Respondent-
Department prescribed for submission of the affidavit for the purpose
of declaring his date of birth and further Railway Board Letter dated
18.01.1972 bearing No.17/72 specifically provides in Para 145(3)(iii)
RI that the date of birth can be corrected after showing satisfactory
explanation within reasonable time and the Petitioner herein has
given his explanation for mentioning of wrong date of birth in service
record from the documents, which is part of the Railways itself and
that too within reasonable time, but even then, his representation
was rejected by the Respondent-Department and the learned CAT
without considering the aforementioned procedure for correction of
date of birth of an employee, had erroneously dismissed the original
application filed by the Petitioner/Applicant.
6. Per contra, Shri Abhishek Sinha, learned standing counsel for
the Respondents has supported the impugned order passed by the
CAT and argued that the application for correction of date of birth by
the Petitioner is highly belated as the application has been made
after completion of 29 years of service. He points out that
continuously making representations one after the other cannot stop
the period of limitation. He submits that in the affidavit which is filed
along with the writ petition as Annexure P/3 though it bears the date
of birth of the Petitioner as 1 st day of April 1961 and in the same
affidavit, he has also declared that he has prosecuted his studies up
to Class-VII from Kenda Dangri Middle School Calooniya, District
Singbhum and based upon the said declaration, the date of birth of
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the Petitioner was verified from the Headmaster of the Kenda Dangri
Middle School Calooniya, District Singbhum. The Headmaster in his
letter dated 19.12.2014 (Annexure R/2) mentioned that the name of
Shri Banshi Bandan Maity S/o Shri Nalini Maity was not properly
recorded/founded, but the name of Banshi Bandhan Mohanty S/o
Nalini Kant Mohanty, Village Chaluniya Post Kenda Dangri, P.S.
Chakulia, East Singbhum is recorded in the school admission
register and the date of birth is mentioned as 11.04.1953. In support
of his submission, learned counsel for the Respondents placed
reliance on the verdict passed by Hon’ble Supreme Court in the
matter of Bharat Coking Coal Ltd. & Ors. v. Shyam Kishore
Singh passed in Civil Appeal No.1009 of 2020 decided on
05.02.2020.
7. We have heard learned counsel appearing for the respective
parties and perused the record.
8. From perusal of the personal details of the Petitioner as
mentioned in the affidavit Annexure P/3 as well as the information
supplied by the Headmaster of the Kenda Dangri Middle School
Calooniya, District Singbhum, it has been shown that though
surname appears to be differently mentioned in the school
admission register as well as the name shown by the Petitioner in
service record, but the name and father’s name appear to be one
and the same. This can be taken to be details of the Petitioner
himself firstly for non-disputing the school, of which, the Headmaster
has sent information and secondly, for the reason that the Petitioner
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in his affidavit submitted by him in the year 1985 at the time of
joining of service that he has prosecuted his studies up to Class-VII
from Kenda Dangri Middle School Calooniya, District Singbhum and
also the name of village, police station and district are mentioned in
the affidavit as well as particulars of the school mentioned in the
letter dated 19.12.2014 (Annexure R/2).
9. The argument raised by learned counsel for the Petitioner
cannot be accepted for other reason also that the Petitioner himself
has mentioned in the affidavit dated 10.04.1985 that he has
prosecuted his studies up to Class-VII from the Kenda Dangri Middle
School Calooniya, District Singbhum, but has not produced any
document in the nature of school leaving certificate or copy of school
admission register showing his name and date of birth.
10. So far as the argument raised by learned counsel for the
Petitioner that the representation submitted by the Petitioner for
correction of his date of birth in service record is not belated is
concerned, perusal of paragraph-3 of the impugned order would
show that for the first time, the Petitioner has submitted his
representation only on 10.10.2009, which is more than after 24
years of service. The Petitioner further did not approach the CAT for
redressing his grievance when his representation was not
considered by the Authorities, but waited till 2015 and filed his first
original application before the CAT in the year 2015.
11. From the above, it is clear that the Petitioner has approached
the Authorities by way of filing of representation for correction of his
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date of birth after inordinate delay and no explanation has been
offered by him in his representation. Even before this Court, the
learned counsel for the Petitioner has not made any submission with
regard to the mode and date when he came to know about wrong
mentioning of date of birth in the service record. The learned CAT
while dismissing the original application has given following
reasons :
“10. The respondents have further
submitted that the physical fitness
certificate, where his date of birth is written
as 10.04.1961, cannot be said to be an
authentic document and cannot be
considered for change of date of birth.
Further the date of birth while preparing of
PTO’s Identity/Medical Card is not verified
with the date of birth recorded in the
service book. So, it cannot be said to be a
validation for the wrong date mentioned in
these records. It has been further
submitted by respondents that the
applicant only brought this fact during the
fag end of his career only, with an intention
for enjoying the service for extended
period. So, the affidavit submitted by the
applicant cannot be relied for necessary
correction of service record. Furthermore,
that the reference dated 17.12.2014 made
to the Headmaster Kenda Dangri Middle
School Calooniya, District Singhbhum, in
which the applicant had stated to be the
imparted education upto class 7th, was
required to verify the date of birth to the
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applicant from the school register. The
concerned Headmaster vide letter dated
19.12.2014 (Annexure R/2) has reported
that the name of Shri Banshi Bandan Maity
S/o Shri Nalini Maity is not properly
founded in their school admission register
but the name of Banshi Bandan Mohanty
S/o Nalini Kant Mohanty Village Chaluniya
Post Kenda Dangri P.S. Chakulia, East
Singhbhum mostly tally with the referred
name but the date of birth of Shri Banshi
Bandan Mohanty is 11.04.1953 as per
admission register of the said School.
11. The respondents have relief upon the
judgment passed by the Hon’ble Apex
Court in the matter of Union of India vs.
Harnam Singh (1993) 2 SCC 162, wherein
the Hon’ble Apex Court has already held
that the stale claim for correction in date of
birth cannot be entertained at this belated
stage. The respondents have also relied
upon the judgment passed by the Hon’ble
High Court of Madhya Pradesh in Writ
Petition No.19334 of 2013 decided on
13.04.2018 (Prabhat Kumar Dwivedi vs.
Union of India and others). The
respondents have also relied upon the
judgment passed by the Hon’ble High
Court of Chhattisgarh at Bilaspur in Writ
Petition (S) No.2886/2017 decided on
07.07.2017 (Dr. Krishna Kumar Kawre vs.
State of Chhattisgarh and others) wherein
the Hon’ble High Court has refereed the
judgment of Hon’ble Apex Court in case of
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Union of India vs. Harnam Singh, 1993
(2) SCC 162. Replying respondents have
specifically submitted in their reply in Para
14 that the applicant himself has submitted
that he made a representation dated
10.10.2009 (Annexure A/7) wherein he
himself admitted that the pay slip was
showing his date of birth as 09.03.1955
whereas the actual date of birth was
10.04.1961. The respondents have taken
this specific plea that the various
representations in the intervening period
and after due consideration was rejected
vide letter dated 24.11.2014 and the
decision taken by the concerned authority
was absolutely inconsonance with the
provisions of existent rules.
12. It is admitted fact that the applicant
superannuated on 31.03.2015 and
representation was made in the year 2009
and subsequent dates. As per reply of the
respondent-department the request for
correction of the date of birth has been
finally rejected on 24.11.2014. The
applicant has approached this Tribunal on
26.02.2016. As per the judgment of Hon’ble
High Court of Madhya Pradesh in the
matters of Prabhat Kumar Dwivedi
(supra), wherein it has been held that
applicant seeking correction of date of
birth, application must be preferred within
reasonable time, failing which such delay
itself can be ground of deny the relief. The
applicant has approached the respondents
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and the respondent-department has
decided the representation on 24.11.2014,
which has been challenged before this
Tribunal that to on the basis of documents
which are not relevant/permissible and has
not corroborating the evidence as has been
supplied by the applicant. So, as per law
settled by the Hon’ble Apex Court in the
matters Harnam Singh (supra), the
applicant has not approached the
respondents in a reasonable period for
correction of date of birth and moreover, all
the representation have been decided in
the year 2014 and has approached this
Tribunal in 2018 without explaining their
reasons for condonation of delay by giving
the plausible reasons.”
12. While dismissing the original application, the learned CAT has
taken into consideration the judgment passed by Hon’ble Supreme
Court in the matter of Harnam Singh (supra).
13. The Hon’ble Supreme Court has time and again held that the
delayed application for correction of date of birth should not be
entertained. In Bharat Coking Coal Ltd. (supra), Hon’ble Supreme
Court has considered its earlier judgment passed in State of
Madhya Pradesh v. Premlal Shrivas reported in (2011) 9 SCC 664
and held as under :
“8. It needs to be emphasised that in
matters involving correction of date of birth
of a government servant, particularly on
the eve of his superannuation or at the fag
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end of his career, the court or the tribunal
has to be circumspect, cautious and
careful while issuing direction for
correction of date of birth, recorded in the
service book at the time of entry into any
government service. Unless the court or
the tribunal is fully satisfied on the basis of
the irrefutable proof relating to his date of
birth and that such a claim is made in
accordance with the procedure prescribed
or as per the consistent procedure
adopted by the department concerned, as
the case may be, and a real injustice has
been caused to the person concerned, the
court or the tribunal should be loath to
issue a direction for correction of the
service book. Time and again this Court
has expressed the view that if a
government servant makes a request for
correction of the recorded date of birth
after lapse of a long time of his induction
into the service, particularly beyond the
time fixed by his employer, he 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. No court
or the tribunal can come to the aid of those
who sleep over their rights (see Union of
India v. Harnam Singh [(1993) 2 SCC 162
: 1993 SCC (L&S) 375 : (1993) 24 ATC
92]).
12. Be that as it may, in our opinion, the
delay of over two decades in applying for
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the correction of date of birth is ex facie
fatal to the case of the respondent,
notwithstanding the fact that there was no
specific rule or order, framed or made,
prescribing the period within which such
application could be filed. It is trite that
even in such a situation such an
application should be filed which can be
held to be reasonable. The application filed
by the respondent 25 years after his
induction into service, by no standards,
can be held to be reasonable, more so
when not a feeble attempt was made to
explain the said delay. There is also no
substance in the plea of the respondent
that since Rule 84 of the M.P. Financial
Code does not prescribe the time-limit
within which an application is to be filed,
the appellants were duty-bound to correct
the clerical error in recording of his date of
birth in the service book.”
14. In view of above law laid down by Hon’ble Supreme Court, if
the facts of the present case are considered, though the Petitioner
joined his service in the year 1985, but he has made representation
for the first time in the year 2009 and approached the CAT by filing
original application after six year after filing of the representation
only in the year 2015. Apart from the above delay, when the
particulars of the Petitioner were verified from the School as
mentioned and named by him in his affidavit of the year 1985,
except the surname, other particulars are co-relating with the
Petitioner, in which, date of birth has been shown to be mentioned
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as 11.04.1953 in the school admission register as informed by the
Headmaster of the Kenda Dangri Middle School Calooniya, District
Singbhum vide Annexure R/2. The Petitioner did not make any
attempt by filing the copies of school admission register or the
school leaving certificate of the School, in which, he studied to
contradict Annexure R/2.
15. For the foregoing reasons, we do not find any tenable ground
to interfere with the impugned order passed by the CAT. The petition
being devoid of any substance, is liable to be and is hereby
dismissed.
Sd/- Sd/-
(P. R. Ramachandra Menon) (Parth Prateem Sahu)
Chief Justice Judge
Yogesh
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