Full Judgment
2. The applicant was appointed as B.P.M. Manganapuri a/w Gajlakonda on the forenoon of the 13.11.1961 vide Shri Gali Reddy. It is the contention of the applicant that Sri Gali Reddy was not a qualified person and does not even know to sign and there was public complaints against him and therefore the respondents asked the applicant to act as adhoc substitute official to run the post office in his own house as the respondent authorities could not find a suitable person with educational qualification and also a person willing to house the post office and run it. Having left with no alternative, the respondent authorities including the then Inspector and the Supdt. of Post Offices, chased the applicant and compelled him to carryout the duties of the post office and he was running the post office from his own residence from 13.11.1961 onwards.
3. It is the specific contention of the applicant that though his appointment was on regular basis as Branch Post Master but the matter was never communicated to the applicant nor the applicant had the knowledge of the date of his appointment as Branch Post Master. The Inspector of Post Offices, Cumbum(K) Division on 30.11.1975 has filled up the descriptive particulars of the applicant wherein the date of birth was recorded as 1.7.1945 which was recorded on the basis of the date of birth contained in the transfer certificate issued by the ZP High School, Donakonda RS dated 31.10.1975. However, on 20.11.1993, the then Inspector during inspection recorded the date of birth of the applicant in the ORDER BOOK of this Post Office as 1.6.1942 whereas in the descriptive particulars filled up by the then Inspector, Cumbum(K) on 30.11.1975. Due to the said discrepancy the applicant submitted objections to the authorities concerned on 10.12.1993, 10.10.2003, 10.12.2004 and 10.5.2005. But instead of taking any action on the representations they have sent a Memo No. B6/BPM/Manginapudi dated 20.09.06 on 23.09.06 containing the notice of retirement of the applicant from service on the after noon of 31.05.07 by which date the age of the applicant would be 65 years of age. Being shocked over the said notice based on the date of birth as 1.6.1942, the applicant immediately represented to the 3rd respondent complaining error in the date of birth resulting in the retirement of the applicant forfeiting three years service. The respondents vide letter dated 4.10.2006 called for xerox copy of the SSC certificate of the applicant which was duly submitted on 12.10.2006. On 18.10.2006, respondent No. 3 vide his letter No. B6/BPM/Manginapudi dated 18.10.2006 has directed the applicant to submit the original transfer certificate. Accordingly the applicant submitted original transfer certificate bearing No. 263032 dated 31.10.1975. It is submitted by the applicant that the Superintendent of Post Offices, who got the certificates verified through the Inspector of Post Offices, has chosen to cover up the error committed by the department and with an intent to turn the tables upon the applicant has threatened the applicant with removal from service for false submission of proof of date of birth certificate vide letter No. B6/BPM/Maginapudi dated 13.12.2006. The applicant has submitted his representation on 21.12.2006 explaining that the date of birth was wrongly entered into the records and he is entitled to be retired from service on 30.5.2010 on the basis of the date of birth entered in the school records i.e. 1.7.1945 and a third party Sri R. Galaiah, exsarpanch of same village submitted affidavit to R-3 on 22.12.2006, because on account of his personal knowledge of events leading to the engaging the applicant as postmaster of the village, he came forward to depose. It is the grievance of the applicant that even then the Supdt.
of Post Offices has chosen not to rectify the discrepancy but taken all steps to retire the applicant on 31.05.2007. Being aggrieved by the same the applicant has come to this Tribunal questioning the order mentioned above.
4. Heard Mr. Krishna Devan, learned Counsel for the applicant and Mr.
G. Jayaprakash Babu, Sr. CGSC for the respondents. I have gone through the facts of the case and material papers placed before me. I have also gone through judgments relied upon by the applicant. I have also gone through the relevant records produced by the learned Sr. CGSC for the respondents.
5. It is not disputed by the respondents that applicant was appointed as BPM on 13.11.1961. It is the case of the respondent that as per the seniority list of GD Sevaks and the Register of BPMs the date of birth of the applicant has been noted as 01.06.1942 and he is due for retire on 31.05.2007 on attaining the age of 65 years. Accordingly, he has been served with a notice that he will be discharged from service on 31.05.2007 on attaining the age of 65 years vide R-3 letter No.B6/BPM/Manginapudi dated 20.09.2006. From the letter dated 20.09.06 which is enclosed at page 8 of the OA (Annexure 01) which is also available in the file produced by the respondents, I find that by the same letter the Postmaster, Markapur HO was directed to confirm the date of birth as seen from the descriptive particulars available with him. From the record I find that in response to the said letter of respondent No. 3 dated 20.9.2006, the Postmaster, Markapur vide his letter dated 29.9.2006 informed the 3rd respondent that as per the attestation form, against col. No. 7, in place of date of birth, it was simply noted year 1942 only and not full date of birth i.e. date, month and year is noted there. In the descriptive particulars dated 13.11.1961, the date of birth was noted as 1.7.1942 and in the descriptive particulars dated 30.11.1975 the date of birth was noted as 1.7.1945. So there is discrepancy between one another in respect of date of birth of the applicant. In view of the said discrepancy in regard to the date of birth of the applicant mentioned in descriptive particulars obtained on 13.11.1961 and 30.11.1975, the 3rd respondent vide his letter dated 18.0.06, which is enclosed at page 12 as AnnexureA-5 to the OA, directed the applicant to submit original transfer certificate, which can be seen from the letter of the applicant dated 27.10.06 enclosed at page 13 of the OA. The 3rd respondent thereafter issued a show cause notice to the applicant vide his letter dated 13.12.2006, which is enclosed at page 16 of the OA, to explain as to how he got the job at the age of 16 only if his date of birth is 1.7.1945 as is entered by department on 13.11.61 and also to explain as to why he should not be removed from service for false submission of proof of date of birth certificate. The applicant replied to the show cause notice on 21.12.2006 which is enclosed at page 17 of the OA. At the time of final hearing the learned Counsel for the applicant submitted that during the pendency of the OA without considering his representation 3rd respondent issued letter dated 9.4.2007 to the SDI(P) Cumbum Sub Division to act according to letter dated 20.09.06 and report compliance. A copy of the said letter is enclosed at page - 6 of the Rejoinder. It is the contention of the learned Counsel for the applicant that this letter shows that the applicant has to retire from service on the A/N of 31.05.2007 on the basis of his date of birth as 1.6.1942 when in fact, his actual date of birth is 1.7.1945.
6. Respondents have contested the application by filing a counter reply. The learned Counsel for the respondents produced departmental file in connection to the case of the applicant. It is the case of the respondents that as per the descriptive particulars obtained on 13.11.1961 i.e. at the time of his appointment, the date of birth is noted as 01.07.1942. Subsequently, in the descriptive particulars obtained on 30.11.1975 the date of birth of applicant is noted as 01.07.1945 as per the T.C. produced by the applicant by the then IPO, Markapur. In this context the respondents have stated that the reason for obtaining descriptive particulars again after lapse of 14 years were not noted anywhere in the descriptive particulars and that it is not required to obtain the particulars again as the same was already obtained at the time of appointment of the applicant. It is the specific contention of the respondents that if the date of birth of the applicant happens to be 01.07.1945 he was not eligible for appointment as BPM, as he was minor as on 13.11.1961. As such the explanation of the applicant was called for as to why he should not be removed from service for false production of proof of date of birth vide R-3 letter No. B6/BPM/Manginapudi dated 13.12.2006. In response the applicant reported that as he is the only educated person available at the time of appointment in the village he was forcibly appointed as BPM, Manginapudi and he has signed all the forms due to his ignorance of rules only. However, respondents have submitted that the version of the applicant is not correct. The seniority list of GD Sevaks prepared as on 1.7.1999 already circulated to the applicant and in the list his date of birth was noted as 01.06.1942 and date of appointment as 13.11.1961. The applicant has signed against the entries noted in the seniority list against his name in token of having verified the correctness of entries and satisfied. But he has not represented at that time. They have also mentioned that as per the Health Certificate produced by the applicant at the time of his appointment dated 01.01.1961 issued by the Medical Officer, Markapur, from where it is clear that the age of the applicant as per his version is 19 years and by appearance he is 19 years old. It is, therefore, the contention of the respondents that as he is 19 years old as on 07.01.1961 his date of birth should be 1942 and the respondents have also referred to Note 6 under FR 56 and stated in the counter reply that as per the said note it is clear that the date of birth so declared by the Government servant at the time of appointment and accepted by the appropriate authority shall not be subject to any alteration except a request in this regard is made within 5 years of his entry into government service and alteration of the date of birth of government servant can be made with the sanction of a Ministry of Department of Central Government, but in this case the applicant has not applied for alteration of his date of birth within 5 years from the date of his appointment. The respondents have issued the letter dated 20.9.2006 to the applicant as he is due for discharge from service w.e.f. 31.05.2007 as his date of birth is noted as 01.06.1942 in the seniority list of GD Sevaks.
7. Para-4 of Section III of EDA Conduct and Service Rules Swamy's Compilation of Service Rules for Postal ED Staff-Eighth edition-2000) deals with Pension. Sub para 2 of para 5 of Director General's instruction, below paragraph 4 (supra) deals with instruction in regard to "Personal File" and the same are reproduced below: 2. Personal File - Every appointing authority should, with immediate effect, maintain a personal file in respect of every ED Agent in which copies of orders relating to the service of the ED Agent such as appointment orders, leave sanction, orders imposing penalties, etc. should be kept arranged in chronological order. In the case of those already in service on the date of receipt of this order, attempts should be made to collect copies of all such orders issued previously till that date and keep them in the personal file. From this file, a "Record of Service" in the form shown in Annexure-I should be prepared as soon as the ED Agent completes 15 years' service. The term 'leave' used in this form should be taken to mean periods during which, with the approval of the appointing authority, the ED Agent is permitted not to perform the duties of his post personally but to have those performed through an approved substitute. Any periods during which it is found that the ED Agent himself does not perform his duties personally and has entrusted them to some other person without the approval of the appointing authority should be treated as unauthorised absence, for the purpose of computing total service eligible for gratuity. The Record of Service should be kept up to date by making entries in it whenever necessary.
8. The departmental file that has been produced by the Sr. CGSC for the respondents contains all the documents, zerox copies of which have been enclosed along with counter reply. The seniority list of ED Agents of Nandyal as on 1.7.1999 is also there. A plain reading of the above instruction would show that the record of service as prescribed therein,which is as below, should be prepared as soon as the ED Agent completes 15 years' service.Sl. No.Date of commencement Last date of leave No. of days leave of leave8. Particulars of unauthorised absence from duty:Sl. No. Date of absentce Total periodSl. Details of penalty Orders passed by Orders passed RemarksNo. awarded by the the appellate autho- by the Review Disciplinary Authority rity if any, with Memo ing Authority, with memo No. and date No and date if any, with Memo No. and dated 9. It is admitted position that the applicant completed more than 15 years of service by now but the file that is produced does not contain such record of service. However, in the said personal file, copy of appointment order is available which says that 'Shri S. Balakotaiah, land holder and shop keeper has been appointed as BPM Mangenapudi a/w Gajjalakonda on the forenoon of the 13.11.1961 vide Shri Galireddy village munsif temporarily appointed at the opening of the B.O. and whose services are no longer required.' From the material papers enclosed along with the counter reply filed by the respondents it is evident from annexure R-4 that the attestation form was filled up on 12.5.1961 and in that at column No. 7, in place of exact date of birth, year of birth was mentioned as 1942; the date and month are missing. In the attestation form that was filled on 13.11.1961, the date of birth of the applicant has been mentioned as 1.7.1942. On what basis the date of birth of the applicant is mentioned as 01.7.1942, is not clear. From the personal file placed before me I found a health certificate signed by the Medical Officer on 7.1.1962 wherein it is stated that by appearance the applicant is 19 years. Again on 30.11.1975, the date of birth of the applicant has been recorded as 1.7.1945. From the original personal file I find that the date of birth of the applicant was again noted as 1.7.1945 as per the TC dated 31.10.1975 issued by the ZP High School, Donakonda. From the impugned letter dated 20.9.06 enclosed at page 8 of the OA it is evident that the Supdt. of Post Office by sending the notice to the applicant informing him that he will be discharged from service on the afternoon of 31.5.2007 as he will be completing 65 years of age as his date of birth is 1.6.1942, directed the Postmaster, Markapur HO to confirm the date of birth as seen from the descriptive particulars. Pursuant to the said letter of Sr. Supdt.
of Post Office, the Postmaster, Markapur informed the following vide his letter dated 29.9.2006, copy of which is enclosed as Annexure R-2 to the counter reply.
Regarding the date of birth as per the attestation from against column No. 7 the date of birth it was simply noted as 1942 only but not full date of birth i.e. date and month and year. In the descriptive particulars dated 13.11.1961, the date of birth was noted as 1.7.1042.
And in the descriptive particulars dated 30.11.75 the date of birth was noted as 1.7.1945. So there is discrepancy between one another in respect of date of birth. This is for kind information and necessary action.
10. After receiving this information and representation of the applicant dated 12.10.06 the 3rd respondent directed the applicant to produce his original Transfer Certificate in connection with the discrepancy in the date of birth as can be seen from the letter of 3rd respondent dated 18.10.2006 which is enclosed at page 12 of the OA. It is the case of the applicant that he has submitted a transfer certificate in original accordingly, which is enclosed at page 13 of the OA. The 3rd respondent thereafter issued show cause notice dated 13.12.06 on the applicant which is enclosed at page 16 of the OA. The contends of the notice are extracted below: Refer to your repn. cited, wherein you have submitted a Xerox copy of the T.C. claiming that your date of birth is 1/7/45 instead of 1/7/42. In this connection, please explain, how you got the job for 16 years only if your date of birth is 1/7/45 as your date of entry in the department is 1/11/61 and also why you should not be removed from service for false submission of your proof of date of birth certificate? Your explanation should reach this office within 3 days of receipt of this letter failing which action will be taken against you as deemed fit.
11. The applicant thereafter submitted his representation which is at page 17 of the OA. Since no action has been taken the applicant approached this Tribunal by filing the OA questioning the notice of retirement dated 20.09.06 and the show cause notice dated 13.12.06 and has sought for the reliefs as mentioned above.
12. In terms of maintenance of personal file as mentioned above, a record of service is to be prepared as soon as15 years of service is completed by the ED Agents. Therefore, there is a necessity to call for the service particulars of ED Agents who are about to complete 15 years of service. Therefore, it is obvious that there was requirement to obtain descriptive particulars of the applicant on 14th year of his service, i.e. in the year 1975. Therefore, I find no reason why the the respondents have stated in the counter reply that "the reasons for obtaining descriptive particulars again after lapse of 14 years were not noted anywhere in the descriptive particulars and it is not required to obtain the descriptive particulars again as the same was already obtained at the time of appointment of the applicant." Such statement show their non application of mind.
13. As mentioned above, in the first descriptive particulars, there is no mention of his date of birth. The year of birth was simply mentioned. In the descriptive particulars dated 13.11.1961, the date of birth was noted as 1.7.1942 without any basis. The medical certificate which was signed by the Medical Officer in 1962 cannot be the basis of recording his date of birth as 1.7.1942 in the descriptive particulars recorded on 13.11.1961. I, therefore, feel that it was very much necessary to call for the transfer certificate of the applicant. Since there is no record of service of the applicant maintained by the respondents and in the attestation form filled up in the year 1961 only the year of birth was mentioned as 1942 and on 13.11.1961,there is no basis of recording his date of birth as 01.07.1942, the descriptive particulars dated 30.11.1975 where the date of birth has been mentioned as 1.7.1945 on the basis of his Transfer Certificate, may be taken as authentic particular. It is also noted that when the Postmaster, Markapur vide his letter dated 29.9.2006 has informed the 3rd respondent about the discrepancy in the attestation form filled up on 12.5.1961 as 1942, on 13.11.1961 as 1.7.1942 and on 30.11.1975 as 1.7.1945, the 3rd respondent directed the applicant to submit his transfer certificate in regard to the discrepancy in his date of birth vide his letter dated 18.10.06. Accordingly the applicant submitted his TC. But there is no explanation as to why the respondents did not given any weightage to the Transfer Certificate before issuing the order to implement the impugned retirement notice. I have also taken note of the fact that in the impugned notice of retirement, the date of birth of the applicant is mentioned as 1.6.1942 which is not the date of birth mentioned in any of the descriptive particulars form mentioned above.
The said date of birth is mentioned in the seniority list of ED Agents of Nandyal Division as on 1.7.1999 produced by the respondents. On what basis such date of birth of the applicant is recorded in the seniority list could not be explained by the respondents. It is an admitted position that applicant has never applied for change of his date of birth.
14. As per Note 6(b) under FR 56, an alteration of date of birth of government servant is made only if clearly genuine and bonafide mistake is happened. In the case in hand admittedly there was discrepancy in the date of birth of the applicant mentioned in various descriptive particulars i.e. in May, 1961 only year of birth was mentioned and on 13.11.1961 date of birth was mentioned as 1.7.1942 without any basis.
(The medical certificate was signed by the officer in 1962) and on 30.11.1975 the date of birth was mentioned as 01.07.1945 on the basis of Transfer Certificate. Therefore, there was bonafide mistake committed by the respondents in recording the date of birth of the applicant differently on different dates. That being so, I am of the view, that note 6(b) under FR 56 covers the case of the applicant.
Moreover, the respondents, when on the basis of such discrepancy, called for the TC from the applicant and the same was submitted by him and when his date of birth was recorded as 1.7.1945 in the year 1975 i.e. on 14th year of his service and when there is a rule (supra) for preparing personal file after 15 years of service, the applicant's date of birth could be changed in 1975 based on his Transfer Certificate.
The applicant cannot he held responsible for his appointment when he was minor. The respondents issued the appointment letter dated 25.11.1961 which is very much available in the file produced by the respondents' counsel.
15. I, therefore quash and set aside the impugned notices dated 20.09.2006 and 13.12.2006. The respondents are directed to allow the applicant to continue in service and retire by taking his date of birth as recorded in 1945 i.e. 1.07.1945.
16. In result, the OA is allowed to the extent indicated above. There shall be no order as to costs.