Full Judgment
1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B.Civil Writ Petition No.9685/2013 The Union of India & ors. V/s Jetha Ram Date of order::- 13.9.2013 PRESENT Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.Kamal Dave for the petitioners. Mr.Vijay Mehta for the respondent. ORDER
BY THE COURT (Per Hon'ble Mr.Amitava Roy)CJ In assailment is the judgment and order dated 28.6.2013 rendered by the learned Central Administrative Tribunal, Jodhpur Bench, Jodhpur (for short, hereafter referred to as “the Tribunal”) in O.A.No.249/2013 interfering with the rejection of the respondent-applicant's prayer for alteration of his date of birth from 12.6.1953 to 12.6.1958 and directing the petitioners to make necessary corrections therein and allowing all consequential benefits to him on the basis thereof. We have heard Mr.Kamal Dave, learned counsel for the petitioners and Mr. Vijay Mehta, learned counsel for the respondent. The abridged version of the pleaded facts is that the respondent-applicant had entered services under the petitioners initially as a casual labour w.e.f. 3.3.1978, whereafter, he joined as regular Group-D employee on 8.5.1979. He had passed the 8th 2 Class in 1973-74. According to him, though the documents furnished by him at the time of his induction as regular employee clearly demonstrated his date of birth to be 12.6.1958, it was wrongly recorded as 12.6.1953. The entry was not made by him in his hand and he was only required to put his signature on the service book. He was unware of this mistake and it was only in the year 2011 when he was provided with the copy of the service record that he came to learn to his shock and surprise that his date of birth had been wrongly recorded as 12.6.1953 in lieu of 12.6.1958. According to the respondent-applicant, at the time of his entry as regular employee, the documents inter-alia furnished by him included Transfer Certificate (TC) issued by the School on 11.7.1974, Certificate issued by the Industrial Training Institute (ITI) on completion of his training in the trade of Welder, Identity Card of the Diesel Shed, PAN Card and Driving License, which all unmistakably attested his date of birth to be 12.6.1958. He submitted a representation for correction of his date of birth and the same having been rejected, he approached the learned Tribunal with O.A.No.79/2013, which was decided on 21.5.2013 with the following operative directions:- “After considering all the relevant facts and the circumstances of the case we allow this application and while quashing the Annex.A/1 passed by the competent authority and direct the competent Railway authorities to decide the representation of the applicant afresh within a month from the date of this order in accordance with the observations made in this judgment after considering all the 3 relevant record and even after considering the recommendation letter (Annex.A/12). Further, respondents are directed to pass a reasoned and speaking order in the light of various judgments referred in the order. There shall be no order as to costs.” As the above text would reveal, thereby the learned Tribunal interfered with the rejection of his representation and directed a fresh consideration thereof by the concerned Railway authorities taking into account all relevant records and the recommendation made by the Divisional Railway Manager, North Western Railway, Jodhpur in favour of the correction of his date of birth as sought for. The respondent-applicant accordingly submitted a representation on 5.6.2013 and the petitioner no.3 by his letter dated 14.6.2013 conveyed to him the decision of the General Manager (Personnel), North Western Railway, Jaipur (petitioner no.2) rejecting his request for change of date of birth having been made at the fag end of his service career. He thus returned to the learned Tribunal for redress. The petitioners in their written statement with reference to Para 225 of IREC (Indian Railway Establishment Code) Part-I in essence reiterated the plea that any change in the date of birth can be allowed in terms thereof only within three years of entry in the service or after three years of completion of probation period, whichever was earlier. According to them, the relaxation that is envisaged for the illiterate employees in this regard was not applicable to the respondent-applicant, who had passed Class-VIII 4 and had undergone training in the trade of Welder in the ITI. The learned Tribunal, however, on a consideration of the pleaded facts and the documents on record and on a consideration of the competing arguments, sustained the challenge of the respondent-applicant and issued directions as adverted to hereinabove. Mr.Dave has emphatically urged that in view of Para 225 of IREC Vol.1 and the unequivocal mandate qua the scope of correction in the date of birth of the Railway employees, the learned Tribunal had erred in law and on facts in directing the petitioners to correct the date of birth of the respondent-applicant from 12.6.1953 to 12.6.1958. As admittedly the respondent- applicant had applied for such correction at the fag end of his service career, having regard to the preponderant judicial pronouncements on the subject, the impugned judgment and order is patently untenable in law and is liable to be interfered with. As the impugned decision, if allowed to stand, would open a flood- gate of such belated requests thereby resulting in the dislocation of the administrative set up, on this count as well, interference with the ruling of the Tribunal is warranted, he urged. To buttresses his arguments, Mr.Dave has relied upon the decisions of the Hon'ble Apex Court in Secretary and Commissioner, Home Department and ors. V/s R.Kirubakaram ((1994) Supp(I) SCC 155.and State of UP & anr. V/s Shivnarayan Upadhyay ((2005) 6 SCC 49). 5 Mr.Mehta in reply urged that a plain reading of Para 225 of IREC Vol.1 alongwith note appended thereto carrying the decision of the Railway Ministry as conveyed by the Railway Board's letter No.E(G)99FR 1/1 dated 7.12.1999 would unmistakably demonstrate that having regard to the documents furnished by the respondent- applicant at the time of his entry in service, his date of birth ought to have been recorded as 12.6.1958 and thus, the impugned decision of the learned Tribunal in the facts and circumstances of the case is unassailable. As wrong entry of the respondent's date of birth was made by the concerned authorities and not by he himself, his signature thereon per se did not debar him from seeking correction of his date of birth based on clinching documents, he argued. Drawing the attention of this Court to Clause (c) of the Railway Ministry's decision appearing with Para 225 of IREC Vol.1, the learned counsel insisted that the concerned Railway authorities having failed to act in terms thereof, the respondent-applicant cannot be either made liable therefor or suffer the penalty of such omission or mistake. He maintained that in view of the unimpeachable documents of proof of the respondent's date of birth to be 12.6.1958, the plea of supposed delay raised ought to be dismissed in limine. We have scrutinized the pleadings and the documents on record and have further weighed the rival submissions. That the respondent-applicant before being inducted as a regular group-D employee by the Railway on 8.5.1979, had been 6 rendering his services as casual labour with effect from 3.3.1978 is an undeniable fact. It is also not denied by the petitioners that at the time of his entry in the regular service, he had laid before the concerned authorities the documents referred to hereinabove i.e.- (i) Transfer Certificate (TC) issued by the School on 11.7.1974; (ii) Certificate issued by the ITI on completion of his training in the trade of Welder; (iii) Identity Card of the Diesel Shed; (iv) PAN Card; & (v) Driving License. All consistently recorded his date of birth to be 12.6.1958. Noticeably, the only reason for repeated rejection of the respondent's request for alteration of his date of birth was the delay in making the same vis-a-vis his impending date of retirement reckoned on the basis of his recorded date of birth i.e. 12.6.1953. In this perspective, the operative direction issued by the learned Tribunal in the earlier round of litigation i.e. O.A.No.79/2013 is of vital significance. The learned Tribunal thereby interfered with the rejection of the respondent's representation seeking alteration of his date of birth and directed reconsideration thereof afresh in accordance with the observations made in the judgment and after scrutiny of all relevant records and the recommendation made by the Divisional Railway Manager, North Western Railway, Jodhpur. The letter dated 9.8.2012 of the Divisional Railway Manager, North Western Railway, Jodhpur, which is a part of the records, discloses that qua this issue, the said authority had taken note of 7 the following documents:-
(1) Mark-sheet and Transfer Certificate (TC) issued by the School on passing the Class VIII.
(2) Panel including the respondent's name after screening him as a casual labour issued by his office on 8.5.1979.
(3) Identity Card.
(4) Driving License.
(5) Order dated 17.8.1981 appointing the respondent as regular employee.
(6) Declaration made by the respondent while obtaining a pass. all revealing his date of birth to be 12.6.1958. As this letter would reveal, the said authority on the basis of the documents was satisfied that his actual date of birth was 12.6.1958 and that the entry indicating the same to be 12.6.1953 was incorrect. This authority, thus, recommended the correction of his date of birth from 12.6.1953 to 12.6.1958. By the communication dated 14.6.2013, as referred to hereinabove, the petitioners again rejected the request for correction of respondent's date of birth. The learned Tribunal, as the text of the impugned decision would reveal, recorded the following reasons for sustaining the challenge:
(1) In terms of Para 225 of IREC Part-I, the date of birth of the respondent should have been recorded by him in his own hand writing.
(2) In terms of clause (c) of the Railway Ministry's decision appended to Para 225 of IREC Part-I, in case of group-D 8 employees, care should have been taken to see that the date of birth as declared on entering regular group-D service was not different from any declaration expressed or implied, given earlier at the time of employment as casual labourer or as a substitute.
(3) The documents submitted by the respondent clearly establish his date of birth to be 12.6.1958 instead of 12.6.1953 and that specific care had not been taken by the office to see that his correct date of birth was recorded in the service book.
(4) Merely by obtaining signature of the respondent on the service book, it could not be concluded that he could not challenge the correctness of the entry wrongly made in view of clause (iii) of sub-para
(4) of Para 225 of IREC Part-I.
(5) The Divisional Railway Manager, North Western Railway, Jodhpur vide letter dated 9.8.2012 on a consideration of the documents as mentioned therein had recommended correction of the respondent's date of birth.
(6) The petitioner no.2 had failed to apply his mind while dismissing the representation of the respondent to the relevant documents and the observations made by the learned Tribunal in the earlier judgment.
(7) The decisions relied upon by the petitioners were inapplicable in the facts and circumstances of the case. 9 Upon hearing the learned counsel for the parties and on a consideration of the materials available on record, we find ourselves in respectful agreement with the reasonings and conclusions recorded by the learned Tribunal. A plain perusal of the contents of Para 225 of IREC Part-I alongwith Railway Ministry's decision appended thereto would in unequivocal terms demonstrate that in the attendant facts and circumstances, the defence of delay as contemplated sub-para 4(iii) was not available to the petitioners, the mistake in recording of the wrong date of birth of the respondent being conspicuously on their count. Clause (c) of the Railway Ministry's decision as conveyed by the Railway Board's letter No.E(G)99FR 1/1 dated 7.12.1999 appended to Rule 225 of IREC Part-I is extracted hereinbelow:- “Railway Ministries decision (a)... (b)... (c) In the case of Group D employees care should be taken to see that the date of birth as declared on entering regular Group D service is not different from any declaration expresed or implied, given earlier at the time of employment as casual labourer or as a substitute.” It is apparent from the above text that it is enjoined thereby that care should be taken to ensure that the date of birth as declared on entering regular group-D service was not different from any declaration expressed or implied, given earlier at the time of employment as a casual labourer or as a substitute. There is no plea of the petitioners that the respondent had given different dates of birth at these two phases of his employment with them. Admittedly, the documents referred to by him in his OA and in the 10 letter dated 9.8.2012 of the Divisional Railway Manager, North Western Railway, Jodhpur consistently disclose the date of birth of the respondent to be 12.6.1958. That the documents had been furnished by the respondent at the time of entry in the service have also not been denied by the petitioners. It therefore passes ones comprehension as to how inspite of imperatives engrafted in the Railway Ministry's decision as above, the respondent's correct date of birth was not recorded in the face of the overwhelming documentary evidence to that effect. Significantly, the date of birth of the respondent was not entered in the service record in his own hand writing, though admittedly he had passed Class VIII. This is also in violation of Para 225(1) of IREC Part-I. The Hon'ble Apex Court in Secretary and Commissioner, Home Department and ors. V/s R.Kirubakaram (supra) and State of UP & anr. V/s Shivnarayan Upadhyay (supra) though had disapproved the endeavours of inert and indolent employees to get their dates of birth corrected at the fag end of their service career, more particularly in the perspective of denial of promotional prospects of the incumbents waiting in the queue, their Lordships have enounced that in any case the burden of proving wrong recording of the date of birth in the service book would be on the applicant and that for entertaining the same irrefutable proof in support thereof has to be produced. 11 In the conspectus of facts as obtains in the present case, the view taken by the learned Tribunal cannot be discarded as wholly unfounded or repugnant to the letter and spirit of the decisions relied upon by the petitioners. We see no cogent or convincing reasons to interfere with the judgment and order rendered by the learned Tribunal. We however make it clear that this determination is based on the singular facts and circumstances of the case and ought not to be comprehended or applied as a precedent in all cases. The petition is thus rejected in these terms. (Vijay Bishnoi)J.
(Amitava Roy)CJ Parmar